Citation Nr: 1334784 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-18 786A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to initial ratings for left ankle fusion in excess of 20 percent, effective October 13, 2006, to December 19, 2006, and in excess of 30 percent, effective March 1, 2007 to June 28, 2007, September 1, 2007 to April 24, 2008, and from June 1, 2008. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from February 1966 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, granted service connection for left ankle fusion, effective October 13, 2006, a 100 percent rating effective December 29, 2006 based on surgical treatment requiring convalescence, and a 20 percent rating, effective March 1, 2007. The 20 percent rating for the left ankle disability was confirmed in a July 2007 rating decision. In August 2007 and January 2008 the Veteran submitted statements contesting the reduction of the 100 percent convalescent rating back to 20 percent for a left ankle surgery based on the impairment he continued to suffer, which he believed continued to warrant a 100 percent rating. As he was essentially asserting entitlement to a higher rating for his left ankle disability, the Board construes his statements as disagreeing with the rating that had been assigned for his left ankle disability in May 2007 to include the 20 percent schedular rating assigned. Therefore the rating decision on appeal is the one dated in May 2007. The Veteran requested a Board video conference hearing and a local RO hearing in June 2006, but instead he participated in an informal conference at the RO in May 2010 in lieu of having a formal hearing. He requested a Travel Board hearing in January 2013, but did not appear for the hearing that was scheduled in August 2013, or indicate any desire to reschedule. Therefore, the Veteran's request for a hearing is considered withdrawn. In October 2008 the RO granted a temporary evaluation of 100 percent for left ankle surgery requiring convalescence, effective April 25, 2008 and a 20 percent rating, effective June 1, 2008. In November 2008 the Veteran submitted a statement noting that he had had an additional surgery in June 2007 for his left ankle that should be considered and that for the time in between his surgeries since March 1, 2007 he should be rated as at least 30 percent disabled. The claims file was subsequently transferred to the RO in Columbia, South Carolina. On his VA Form 9 dated in June 2009, the Veteran did not appeal the propriety of the reduction of the 100 percent temporary evaluation, effective March 1, 2007, but did appeal the 20 percent rating for the left ankle and the denial of a total disability rating for individual unemployability noting that he had not worked since April 2005 due to his service-connected disabilities. He also reasserted that he should get another convalescence rating based on his left ankle surgery in June 2007. In June 2010, the RO granted an increased rating of 30 percent for the left ankle disability, effective March 1, 2007. While the Veteran has stated that he should be rated as at least 30 percent disabled for the left ankle, he has not indicated that he is satisfied with the rating assigned for the left ankle. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The RO also granted another convalescent rating for the left ankle disability in an April 2012 rating decision, effective June 29, 2007 to September 1, 2007 with a 30 percent rating thereafter. In June 2012, the RO, in pertinent part, granted entitlement to a TDIU, effective March 1, 2007. The Veteran did not appeal the period of convalescent rating for the left ankle or the TDIU grant. Therefore, these matters are not on appeal. The only issue for appellate consideration is the schedular rating assigned for the left ankle disability. Thus, the issue has been characterized as reflected on the first page of this decision. While the Veteran has not separately appealed the issue of entitlement to a TDIU due to service-connected disability, the issue has been raised on a derivative basis pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence indicates that the Veteran may be unemployable due to his service-connected left ankle disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court essentially stated that a request for total disability rating, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. In this case, however, the Veteran has already been awarded a TDIU effective from March 1, 2007. Prior to that date, however, the issue of entitlement to a TDIU is still raised on a derivative basis as part of the Veteran's initial rating claim for a left ankle disability, as the Veteran reportedly stopped working full-time in 2005 due to problems with his left ankle. As the Court of Appeals for Veterans Claims (Court) recently noted in Locklear v. Shinseki, 24 Vet. App. 311 (2011), Rice states that a request for a TDIU is 'not a separate claim for benefits,' and is best analyzed as a request for an appropriate disability rating, either 'as part of the initial adjudication of a claim, or ... as part of a claim for increased compensation.' Rice, 22 Vet. App. at 453-54. However, the Court in Locklear elaborated that in Rice the Secretary did not separate the adjudication of an initial disability rating from the adjudication of TDIU. Conversely, in Locklear, the Secretary specifically separated the adjudication of the schedular disability rating from the adjudication of TDIU. Bifurcation of a claim generally is within the Secretary's discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection); Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions); Holland v. Brown, 6 Vet. App. 443, 447 (1994) (holding that 'it was not inappropriate' for the Board to refer a TDIU claim to the RO for further adjudication and still decide an increased-ratings claim). In fact, Rice explicitly noted the possibility that the separation of TDIU would provide distinguished circumstances, ('This is not to say that, just because TDIU is raised in the context of an initial adjudication of a claim, in an appropriate case, the Court could not review a schedular rating assigned by the Board even though the Board also remanded or referred an issue as to entitlement to TDIU.'). Locklear v. Shinseki, 24 Vet. App. 311 (2011). The issues of entitlement to a TDIU prior to March 1, 2007 and a convalescent rating in May 2010 from a surgery to remove a screw from the left ankle at a private hospital have been raised by the record as noted in a June 2010 VA examination report, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's left ankle disability is manifested by no more than ankylosis in plantar flexion less than 30 degrees prior to March 1, 2007; and effective March 1, 2007, no more than ankylosis in dorsiflexion to 0 degrees. CONCLUSION OF LAW The criteria for ratings for a left ankle disability in excess of 20 percent, effective October 13, 2006, and 30 percent, effective March 1, 2007 to June 28, 2007, September 1, 2007 to April 24, 2008, and from June 1, 2008 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, DC 5270 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). RO letters dated in November 2006 and August 2008 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above. The Veteran was also notified that he should submit evidence demonstrating the effect that worsening of his left ankle disability had on employment, in that he was told that he could submit statements from employers as to job performance, lost time, or other information regarding how his condition affects his ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The letters also provided the Veteran with information on how VA determines and assigns effective dates. As such, November 2006 and August 2008 letters satisfied VA's duty to notify. Regarding the duty to assist, the RO has obtained the Veteran's service records, VA treatment records, private treatment records, and Social Security Administration records. The RO also has provided him with VA examinations in January 2007, June 2007, June 2008, and June 2010. The examination reports adequately address all the necessary criteria for rating the claim. The fulfillment of the duty to assist includes the conduct of a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). While a period of three plus years has passed since the last evaluation to address the left ankle there is no indication that the left ankle disability has worsened since that time. VA treatment records dated through January 2013 note complaints of chronic, severe left ankle pain and that new orthotics were ordered. But this does not demonstrate any worsening in severity of the left ankle disability. The mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). In this case, as there is no evidence that the Veteran's left ankle disability has worsened since it was last evaluated in June 2010 another examination is not warranted. Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating The Veteran seeks a higher rating for his service-connected left ankle disability. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, such as the initial rating claim for the left ankle disability, all of the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5270 for ankylosis of the ankle. A 20 percent rating is assigned for ankylosis in plantar flexion less than 30 degrees; a 30 percent rating is warranted for ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees; and a 40 percent rating is warranted for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Normal range of motion is from 0 to 20 degrees of ankle dorsiflexion and 0 to 45 degrees of ankle plantar flexion. 38 C.F.R. § 4.71a, Plate II. Effective October 13, 2006, the Veteran is assigned a 20 percent rating for his left ankle disability. A January 2007 VA examination report shows the Veteran had a recent fusion of the left ankle on December 20, 2006 and was still on a cast for his left ankle and leg. It is noteworthy that from December 20, 2006 to March 1, 2007, the Veteran is assigned a convalescent rating of 100 percent for the left ankle disability. Private treatment records prior to December 20, 2006 do not demonstrate that a rating higher than 20 percent is warranted for the left ankle disability. An April 2006 treatment record notes the Veteran was seen for follow-up after an ankle arthroscopy and had 0 to 30 degrees of plantar flexion with no instability. It was recommended that he gradually increase weight-bearing. A June 2006 treatment record notes the Veteran still had significant pain in the medial ankle. He had tenderness on palpation along the medial joint line and with forced plantar flexion and dorsiflexion. It was noted that the Veteran had evidence of extensive full thickness cartilage loss down to the subchondral bone and the medial articular surface of the tibia including the articular surface of the medial malleolus, and that he would likely require a more radical type of surgical procedure on his ankle. He was given a prescription for a short fracture boot. An August 2006 treatment record notes the Veteran was doing much better with improvement in pain and was off of all narcotics and walking in regular shoes comfortably. In October 2006, the Veteran complained of increasing pain located in the anterior aspect and medial aspect of the ankle. He had a repeat MRI, which demonstrated a persistent osteochondral defect and degenerative changes in the ankle. He wished to proceed with the procedure for his ankle problem and it was recommended that he undergo a fusion, as long has he understood this would eliminate all motion through the tibiotalar joint. Thereafter, the Veteran underwent the fusion surgery on December 20, 2006. These findings do not demonstrate more significant impairment than that is warranted for a 20 percent rating under Diagnostic Code 5270. The Veteran's range of motion was noted to be 0 to 30 degrees of plantar flexion in April 2006 and ankylosis in the ankle was actually not evident prior to the December 2006 fusion surgery. While the Veteran had significant pain in the ankle he was given the highest rating of 20 percent for limitation of motion in the ankle under Diagnostic Code 5271. Moreover, none of the other diagnostic codes pertaining to the ankle provide for a rating higher than 20 percent. The evidence does show that the Veteran experiences painful motion of the left ankle; however, it does not result in a separate and/or higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. Here, examination did not indicate any pain that would result in ankylosis of the ankle between 30 and 40 degrees of plantar flexion or in dorsiflexion between 0 and 10 degrees. Therefore, a rating higher than 20 percent is not warranted under Diagnostic Code 5270 prior to December 20, 2006. Effective March 1, 2007, a 30 percent rating is assigned for the left ankle disability. A March 2007 private treatment record notes that the Veteran had fairly constant ongoing pain in the left ankle and had been unable to weight bear without significant pain. On physical examination there was some discernible motion at the tibial talar joint. His x-ray also was worrisome in that he appeared to have an evolving lucent line at the level where the fusion should be taking place. In April 2007 the Veteran was seen again with continued significant pain and swelling with any type of weight-bearing. X-rays showed that he appeared to have developed a nonunion. The plan was to proceed with a revision fusion with hardware removal and bone grafting. A June 19, 2007 VA examination report shows the Veteran had decreased mobility and mild to moderate functional impairment as a result of his left ankle disability. The findings on the private treatment records of nonunion in the left ankle also were noted. There were no range of motion studies performed, however, or evaluation of what degree the Veteran had ankylosis of the left ankle. Thereafter, the Veteran underwent a fusion of the left ankle nonunion on June 29, 2007 and received a convalescent rating for that period through September 1, 2007. The medical evidence between March 1, 2007 and June 28, 2007 is sparse but does not show that a rating higher than 30 percent is warranted. While the Veteran is shown to have developed a nonunion in the ankle and had significant pain with the inability to weight-bear, there are no specific findings of the degree in which ankylosis in the left ankle is shown. As ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity is not shown, a higher rating cannot be assigned for the period from March 1, 2007 to June 28, 2007. The next rating period for the 30 percent rating is from September 1, 2007 to April 24, 2008. A September 2007 private treatment record shows the Veteran was being seen in follow-up after his tibiotalar fusion. He complained of no pain and had been walking out of his boot at home with no pain. Physical examination showed no significant swelling. His ankle felt solidly fused. He had about a 10 to 15 degree arc of motion through his mid foot joints. Subsequent treatment records through December 2007 continue to show a healed ankle fusion. However, in December 2007 the Veteran complained of increasing pain in the ankle with some mild swelling. X-rays showed a broken screw distally. A subsequent CT scan showed an incomplete tibiotalar fusion with some cysts within the body of the talus and some degenerative changes in the subtalar joint. A January 2008 private treatment record notes increasing pain. He had motion discernible at the fusion sight. The impression was non-union ankle fusion. In March 2008 a private treatment record shows they were going to proceed with revision of his ankle fusion with "BMP" and an internal bone stimulator. The Veteran later underwent surgery and received a convalescent rating on April 25, 2008. The findings from September 1, 2007 to April 24, 2008 do not specifically indicate that a rating higher than 30 percent is warranted for the left ankle disability. The only range of motion study noted that the Veteran had a 10 to 15 degrees arc of motion through his mid foot joints. This does not directly address the ankle; but nonetheless, none of the findings meet the criteria for the next higher 40 percent rating under Diagnostic Code 5270. The last rating period is from June 1, 2008. A June 2008 VA examination report shows the left ankle was very enlarged compared to the right and was unable to move in any direction. The ankle pain was severe without the boot; with the boot, the pain was at a 4 or 5 out of 10. The Veteran was unable to walk without his boot and both crutches. There was ankylosis of the left ankle at 0 degrees of plantar flexion and 0 degrees of dorsiflexion. It was noted that the ankle was fused and would be immovable if it healed correctly. He was prevented from doing many daily activities, but had no impairment in recreation, feeding, and toileting. He had severe impairment in bathing and mild impairment in dressing. A September 2008 private treatment record shows that the Veteran had left ankle pain that was fairly chronic. He found that a walking boot helped. Physical examination revealed an antalgic gait on the left with no obvious malalignment. Sitting examination showed some tenderness around the ankle and the subtalar joint region. There were multiple well-healed surgical scars. He had mild swelling and some crepitus with subtalar motion. It was noted that if there was significant change in the subtalar joint shown on CT scan that he might want to consider conversion to a tibial-talar-calcaneal fusion or below the knee amputation. A CT scan revealed probable union of his tibial-talar joint but with anterior positioning. He had degeneration in the subtalar joint with subchondral cyst formation and current osteophytes. An October 2008 private treatment record notes that the CT scan was re-reviewed and found that he had a partial union at his ankle fusion with some degenerative changes in his subtalar joint. The Veteran agreed to proceed with injection of the left subtalar joint with fluoroscopic control. A November 2009 VA treatment record shows the Veteran's left ankle was diffusely swollen and tender to firm pressure. There was irregular contour and 0 range of motion. In June 2010, a VA examination report shows that a screw was removed from the Veteran's left ankle in May 2010 at Self Memorial Hospital in Greenwood. On physical examination there was no motion in the left ankle. Thus, dorsiflexion, plantar flexion, inversion, and eversion were all 0 degrees. X-ray examination showed evidence of prior fusion at the tibial talar joint along with a prior resection of the distal fibula and also noted numerous orthopedic screws. These findings demonstrate ankylosis in dorsiflexion at 0 degrees, which warrants a 30 percent rating under Diagnostic Code 5270, but no higher. There is no evidence of ankylosis in dorsiflexion at more than 10 degrees, or ankylosis in plantar flexion at more than 40 degrees. While irregular contour in the ankle was noted in November 2009 there are no findings of deformities in abduction, adduction, inversion, or eversion. The Veteran is competent to report symptoms associated with his left ankle disability, and there is no reason shown to doubt his credibility in this regard. However, as a layperson, lacking in medical training and expertise, he cannot provide a competent opinion on a matter as complex as the severity of the clinical manifestations of his left ankle disability and his views are of little probative value. And, even if his opinion were entitled to be accorded greater probative value, it is far outweighed by the medical evidence of record demonstrating clinical analysis of the left ankle. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In view of the foregoing, the preponderance of the evidence is against the claim for ratings higher than 20 percent, effective October 13, 2006 to December 19, 2006, and 30 percent, effective March 1, 2007 to June 28, 2007, September 1, 2007 to April 24, 2008, and from June 1, 2008 for the Veteran's left ankle disability; there is no reasonable doubt to be resolved; and an increased rating is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57-58. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2013). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's left ankle disability (i.e., pain, ankylosis, and limitation in many daily activities) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 20 and 30 percent ratings under Diagnostic Code 5270 contemplate symptoms attributed to ankylosis in the ankle. Thus, the Board finds that this rating reasonably describes the Veteran's disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to initial ratings for a left ankle disability in excess of 20 percent, effective October 13, 2006, and 30 percent, effective March 1, 2007 to June 28, 2007, September 1, 2007 to April 24, 2008, and from June 1, 2008 is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs