Citation Nr: 1335866 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 07-29 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to October 16, 2009, and since November 1, 2010, for posttraumatic degenerative arthritis of the right ankle status post Dwyer calcaneal osteotomy (previously claimed as a right foot condition). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to September 1992. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from April 2007, February 2010, April 2010, and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2007, the RO denied the Veteran's claim for a disability rating in excess of 10 percent for his right ankle disability. In February 2010, the RO granted a temporary total disability rating, effective from October 16, 2009, to March 1, 2010, for convalescence under 38 C.F.R. § 4.30 due to right ankle surgery and the currently assigned 10 percent disability rating for a right ankle disability was continued, effective March 1, 2010. In September 2010, the RO granted an extension of the temporary total disability rating to July 1, 2010, and the currently assigned 10 percent disability rating for a right ankle disability was continued, effective July 1, 2010. The Veteran testified before the undersigned Veterans Law Judge at a March 2011 Central Office hearing in Washington, DC. A transcript of the proceeding has been associated with the claims file. In July 2011 the Board remanded the Veteran's claims of entitlement to a disability rating in excess of 10 percent for his right ankle disability and entitlement to an extension beyond June 30, 2010, of a temporary total rating for convalescence due to right ankle surgery under 38 C.F.R. § 4.30 for additional development. The case is now again before the Board for further appellate consideration. In a November 2012 rating decision, the Appeals Management Center (AMC) extended the temporary total disability rating for convalescence due to right ankle surgery under 38 C.F.R. § 4.30 to November 1, 2010, and continued the currently assigned 10 percent disability rating for the Veteran's right ankle disability thereafter. As this represents a total grant of benefits as to the Veteran claim for extension of a temporary total disability rating for convalescence due to right ankle surgery under 38 C.F.R. § 4.30, this issue is no longer before the Board for appellate consideration. The AMC also awarded service connection for unstable or painful scars resulting from the October 16, 2009 right ankle surgery and assigned a noncompensable disability rating, effective October 16, 2009, and a 10 percent disability rating, effective August 26, 2011, under 38 C.F.R. § 4.118, Diagnostic Code 7804. As of the date of this remand, there is no indication that either the Veteran or his representative are in disagreement with the effective dates or the initial disability ratings assigned for right ankle scars. As the full benefit sought has been granted pertaining to the Veteran's right ankle scar disability has been granted, this issue is not before the Board for appellate consideration. A review of the Veteran's Virtual VA electronic claims file shows that prior to the issuance of the most recent supplemental statement of the case in August 2012, additional VA treatment records were associated with the record on appeal. These records have been reviewed and considered by the Board in deciding the Veteran's claims for increase. At the March 2011 hearing and in the August 2011 brief, the Veteran and his representative raised claims for service connection for a left ankle disability secondary to a service-connected right ankle disability (see Hrg. Tr. at pg. 19) and an umbilical hernia, and to reopen previously denied claims of service connection for a neck injury with degenerative changes, right carpal tunnel syndrome, a low back condition and hepatitis (see August 2013 brief), however, these issues 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. FINDINGS OF FACT 1. Prior to October 16, 2009, and since November 1, 2010, the Veteran's posttraumatic degenerative arthritis of the right ankle status post Dwyer calcaneal osteotomy has been manifested by no more marked limitation of motion with no ankylosis, malunion of the os calcis or astralgus, or astragalectomy. 2. Throughout the appeal, the Veteran's posttraumatic degenerative arthritis of the right ankle status post Dwyer calcaneal osteotomy has not presented an exceptional or unusual disability picture. CONCLUSIONS OF LAW 1. Prior to October 16, 2009, and since November 1, 2010, the criteria for a 20 percent evaluation, but no greater, for posttraumatic degenerative arthritis of the right ankle status post Dwyer calcaneal osteotomy are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274 (2012). 2. Application of the extraschedular rating provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the Veteran's claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Stegall Considerations As noted above, the Board remanded this case for additional development in July 2011. The Board directed that the RO/AMC (1) obtain VA treatment records dating from January 2006 to November 2011 and since September 2010; (2) obtain records from the Social Security Administration (SSA); (3) afford the Veteran a new VA examination; and (4) readjudicate the claim. In August 2011 and April and July 2012, the aforementioned VA treatment records were obtained and associated with the paper and electronic claims files. SSA records were obtained and associated with the claims file in September 2011. The Veteran was afforded a new VA examination for his right ankle disability in August 2011. The claims were readjuicated in the August 2012 SSOC. Thus, there is substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). II. Duties to Notify and Assist By way of background, the Veteran was provided with a periodic VA examination on January 29, 2007, relating to his right ankle disability. Following such examination, the RO issued a rating decision continuing a 10 percent disability rating for his right ankle disability, which rating the Veteran appealed herein. In subsequent correspondence dated in May and July 2008, however, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). The May 2008 letter advised the Veteran to submit evidence showing that his right ankle disability had worsened, to include records from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. The letter informed the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the symptoms have on his employment, provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increase need not be veteran specific). In the July 2008 letter, the RO notified the Veteran of: information and evidence necessary to substantiate his claim for increase; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. Both letters also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thereafter, the RO readjudicated the claim for increase for a right ankle disability in February and April 2010 rating decisions. The claim was last readjudicated in the August 2012 SSOC. Hence, the Veteran is not shown to be prejudiced by the late timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). The Veteran was able to participate effectively in the processing of his claim. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file and all identified and available treatment records have been secured. Also, as the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations pertinent to the claimed disability in January 2007, July 2008, April 2010, and August 2011. The Board acknowledges that during the March 2011 hearing, concerns were raised as to the adequacy of the April 2010 VA examination. The Board notes, however, that the at the time the April 2010 examination, the Veteran was receiving a temporary total 100 percent disability rating for convalescence related to surgical treatment of his right ankle disability. Also, in accordance with the Board's July 2011 remand, the Veteran was afforded and additional VA examination in August 2011. The January 2007, July 2008, and August 2011 examination reports reflect that the examiners reviewed the medical history of the claimed disability, recorded the Veteran's current complaints and reported history of the claimed disability, and conducted appropriate evaluations of the Veteran's right ankle. These examinations and opinions, in combination, and along with the other evidence of record, are fully adequate for the purpose of adjudicating the Veteran's claim for increase for his right ankle disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he and his representative presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. III. Factual Background Historically, service connection for posttraumatic degenerative arthritis of the right ankle was granted in a 1993 rating decision, which assigned a 10 percent evaluation effective September 4, 1992. The current claim stems from continuation of the previously assigned 10 percent disability rating following a periodic VA examination relating to his right ankle disability on January 29, 2007. The Veteran contends that his right ankle disability is more severely disabling than is reflected by the 10 percent disability rating currently assigned prior to October 16, 2009, and since November 1, 2010. Unless otherwise specified below, evidence dating since 2006 shows subjective right ankle complaints of stiffness; swelling; and constant aching and sharp pain in the side of the ankle that increased with activity and was relieved with rest and Tylenol. In March 2006, the Veteran claimed that he was no longer able to work, in part, due to his right ankle disability. On VA examination in January 2007, it was noted that functionally, the Veteran's right ankle complaints prevented him from running, squatting, and standing and walking for long periods of time. There had been no periods of incapacitation for VA purposes in the last 12 months due to right ankle complaints, however, the Veteran claimed that his right ankle disability resulted, on average, in 75 days of incapacitation due to right ankle pain. In that regard, he did a lot of manual work as a telecommunications technician until January 2007, and his work had been impacted by right ankle arthritis. At the time of examination, he did not use an assistive device for ambulation. Physical examination in January 2007 was significant for findings of edema, tenderness, and guarding of movement. There was no evidence of abnormal weight bearing. His gait and posture were described as normal. Range of motion of the right ankle was dorsiflexion from 0 to 10 degrees and plantar flexion from 0 to 30 degrees, with pain at 10 degrees on plantar flexion and at 30 degrees on plantar flexion. Repetitive motion of the right ankle was productive of pain, fatigue, weakness and lack of endurance, however, the examiner found no additional limitation of motion on repetitive motion of the right ankle. Additional limitation of joint function after repetitive use or during flare-ups could not be determined without resort to mere speculation. Pain had the major functional impact. In February 2007, x-ray of the right ankle showed bone formation in the interosseous region without any finding of acute abnormality. In May 2007, the Veteran was working as a telephone repairman, which required that he spend some time on his feet. Physical examination showed "pretty good" range of motion of the right ankle, tenderness, and swelling in the anterolateral ankle region. There was no evidence of instability. X-ray showed reasonably large bony exostosis, which was most certainly posttraumatic, however, the ankle joint itself was pretty well preserved. MRI of the right ankle was ordered to see if nay soft tissue abnormalities accounted for complaints of pain. Subsequent MRI examination of the right ankle in May 2007 showed lateral ankle joint effusion, tear of the syndesmotic ligaments, exostosis, and partial tear of the anterior talofibular ligament (ATFL). In June 2006, the Veteran reported worsening right ankle pain that sometimes limited his ability to work as a telephone engineer. He had intermittent numbness of his right foot since 2 weeks prior. Physical examination showed mild generalized swelling, tenderness of the ATFL, severe pain with full dorsiflexion, and passive plantar flexion to 40 degrees. Anterior drawer test was negative, inverter strength was normal, and evertor strength was weak. In August 2007, x-ray of the right ankle showed a little decrease in ankle joint space medially and irregular ossification between the distal fibula and tibia. Findings were consistent with degenerative joint disease changes of the right ankle joint. Diagnostic impression was osteoarthritis of the right ankle. Treatment with ice and bracing was recommended. In November 2007, the Veteran's right ankle disability was treated with a Halogen injection without benefit. Pain medication also provided no benefit. A foot and ankle consultation was ordered for right ankle instability and chronic pain. In December 2007, the Veteran underwent a VA orthopedic surgical consultation. Physical examination showed a not particularly antalgic gait. He had Varus heel and a tight gastrocnemius muscle. Strength was 5/5 on right ankle flexion/dorsiflexion, extensor/flexor hallucis, and inversion and eversion. Drawer test was negative and there was no evidence of instability. Sensation was intact in all distributions. X-ray and MRI findings were noted and diagnostic assessment was posttraumatic arthritis of the ankle and tight gastrocnemius muscle. Treatment was to include a brace while ambulatory and while working, physical therapy for stretching. If no improvement was seen in four months, he was to be evaluated for possible arthroscopic debridement of the right ankle joint. In January 2008, there was full range of motion of the right ankle with tenderness over the ATFL. He was prescribed pain medication, a right ankle air cast, and physical therapy for exercises of the right ankle. In March 2008, continued complaints of lateral foot and ankle pain were noted. Pain was worse with activity and significantly worse in the evenings after a full day of activity. He was taking medication for pain. Past failed conservative treatment efforts included Hyalgan steroid injections. He had not tried bracing but complained of instability. On physical examination, he ambulated with a slight limp on the right side. The right heel was in Varus and heel chord was right. There was mild swelling and tenderness. Tibiotalar motion was relatively preserved. Subtalar motion was slightly decreased. Mid foot motion was good. Talar tilt test was positive and anterior drawer test was negative. Sensation was normal. Diagnostic impression was status post ankle fracture with likely instability and relatively well preserved tibiotalar, subtalar, and Chopart's joints. It was noted that stress views were needed to evaluate stability. In May 2008, ankle bracing was helping minimally with continued complaints of pain, worse with activity. Stress view x-rays of the right ankle had been obtained and were read as negative for evidence of instability. Physical examination was essentially unchanged. Diagnostic impression was status post ankle fracture with likely recurrent ankle strains but with stability based on stress x-rays. MRI had demonstrated possibly a fibrotic syndesmosis between the distal tibia-fibula joint without evidence of ligamentous disruption. He was advised to continue strengthening and stretching and to wear an ankle brace. An orthotic arch was ordered to get his heel out of a little Varus and to correct a mild flexible cavovarus deformity and reduce stress on the anterolateral aspect of the ankle joint. The Veteran underwent an additional VA examination in July 2008. On that occasion, he reported that he had to rest during exacerbations with severe right ankle pain and at other times he could function with medication. Pain was associated with weakness and stiffness and aggravated by weight bearing activities, kneeling, squatting, and ambulating stairs. At rest, he experienced pain, weakness, stiffness, and swelling. While standing and walking he experienced pain, weakness, swelling, and fatigue. He could stand for only 30 minutes and walk 50 yards. He required use of a cane for assistance with ambulation to help support weight when stepping on his right leg. He also required arch and foot supports, however, corrective shoe wear did not relieve pain. On physical examination in July 2008, his posture was within normal limits. His gait was abnormal with limping on the right leg. Examination of the feet was negative for any sign of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. Range of motion of the right ankle was from 0 to 10 degrees on dorsiflexion and to 20 degrees on plantar flexion with end of range pain. Right ankle joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. There was no ankylosis or indication of malunion of the os calcis or astragalus. The examiner diagnosed posttraumatic degenerative arthritis of the right foot. Effects on the Veteran's usual occupation and daily activities included pain, weakness, and stiffness of the right ankle. In August 2008, range of motion of the right ankle was plantar flexion to 35 degrees and dorsiflexion to 20 degrees. Strength was normal (5/5) on plantar flexion, dorsiflexion, inversion, and eversion. Sensation was intact. The right heel was in Varus. There was preserved talonavicular and subtalar motion. It was recommended that he undergo surgical treatment with Dwyer osteotomy with lateral shift. In October 2008, the Veteran was granted disability benefits from the Social Security Administration with a disability onset date of September 27, 2008, as his hours were reduced to less than substantially gainful levels. In an August 2009 rating decision, the Veteran was granted individual unemployability, effective October 18, 2008, the date after he was most recently employed, due to his service-connected PTSD. On October 16, 2009, the Veteran underwent a right calcaneal Dwyer osteotomy with lateral shift due to right cavus foot. From October 16, 2009, to October 31, 2010, the Veteran was in receipt of a temporary total disability rating for a period of convalescence due to surgical treatment of his service-connected right ankle disability. In an October 2010 statement, the Veteran's representative indicated that he had nonunion of calcaneal with pain on movement, swelling, and interference with standing and all weight bearing activities. He stated that an evaluation in excess of 10 percent is warranted due to the Veteran's unusual disability picture due to nonunion of the right heel with functional loss due to pain and weakness. In his December 2010 substantive appeal, the Veteran indicated that his right ankle disability had caused problems with his occupational functioning. He stated that he should received additional compensation due to unsuccessful surgical treatment of his right ankle disability by a VA resident physician, which had left him more disabled than he was prior to surgery. He stated that he was unable to maintain his weight due to limited or no range of motion of his right ankle. He reported symptoms of pain due to arthritis, a deformed foot, swelling, and scarring. In December 2010, 14 months status post Dwyer calcaneal osteotomy, the Veteran experienced residual pain and swelling that had slightly improved over the last few months. He was no longer using a cam walker for assistance with ambulation and he was weight bearing in a normal shoe. There was good range of motion with planar and dorsiflexion. He seemed to be progressively healing, however, with signs of delayed union. He was to perform weight bearing as tolerated on his right lower extremity. In March 2011, the Veteran complained of burning pain in both feet, right greater than left, with sharp tingling in his toes and on the soles of his feet. Physical examination showed decreased sensation to light touch in superficial peroneal and posterior tibial distributions. He was able to achieve neutral plantar flexion and dorsiflexion with the knee extended and flexed and he was able to get about 10 degrees on dorsiflexion. X-ray showed a large cannulated screw in the calcaneus. There appeared to be cortical continuity with trabecular striations crossing the previous osteotomy site inferior and superiorly. The axillary view of the heel showed lateral and medial cortical striations indicating completion of the union at the osteotomy site. Diabetic lab findings were noted to be elevated over a period of years prior to examination and the examining physician found that physical examination showed some element of diabetic neuropathy occurring in the Veteran's feet, which he said was consistent with complaint of burning type pain and tingling in both feet and decreased sensation, particularly on the plantar aspect of the foot. His osteotomy had healed enough for him to perform activities he could tolerate. The Veteran was discharged from the Richmond VAMC orthopedic surgery clinic where the October 2009 right ankle surgery was performed. In March 2011, the Veteran testified that he felt like his right ankle disability was worsening by the day without any period of stabilization since his right ankle surgery in October 2009. He reported difficulty walking short distances with needing to stop, rest, and elevate his feet after walking only 50 feet. In accordance with the July 2011 remand, the Veteran underwent an additional VA examination of his right ankle disability in August 2011. Subjective complaints at that time included giving way, instability, pain, stiffness, weakness, and decreased speed of joint motion. He described problems with constant pain and walking due to his right ankle disability, which had worsened since surgical treatment in October 2009. He indicated that he had been wheelchair bound since 1 year prior or since his October 2009 surgery due to right ankle pain and an inability to stand without falling. He reportedly fell three weeks earlier while walking around his car and he required assistance standing and increased right ankle swelling since that incident. The examiner noted moderate unsteadiness on ambulation without a cane and difficulty walking more than 100 feet without falling without use of his cane. He could stand for 15 to 30 minutes and walk a quarter of a mile with use of a cane for assistance with ambulation. In that regard, the examiner noted that the Veteran had a handicapped sticker for his vehicle prior to the October 2009 right ankle surgery. There were no symptoms of deformity, incoordination, or incapacitating episodes of arthritis. Treatment at the time of examination included use of a brace, activity limitation, NSAID medication, Ultram, and Capsaicin cream without relief. Physical examination in August 2011 showed an antalgic gait with use of a cane and an inability to walk more than 100 feet without use of a cane or holding on to something to keep from falling. There was evidence of abnormal weight bearing with increased wear on the outside edges of the bilateral heels. Range of motion of the left ankle was normal and range of motion of the right ankle was from 0 to 15 degrees on dorsiflexion and from 0 to 30 degrees on plantar flexion. There was objective evidence of pain following repetitive motion and additional limitation of motion of the right ankle due to pain with dorsiflexion to 10 degrees and plantar flexion to 25 degrees after three repetitions of range of motion. The Veteran was very resistant to repetitive motion due to pain. X-ray of the right ankle showed healed calcaneal osteotomy with single bone screw in place. The mortise was maintained and there was an ossification in the interosseous region of the distal tibia. The examiner diagnosed right ankle strain residual of surgery status post Dwyer Calcaneal Osteotomy with a problem of right ankle degenerative arthritis status post Dwyer calcaneal osteotomy with scar. Occupationally, it was noted that the Veteran had been unemployed since 2008 when he worked as a lot attendant. Nevertheless, his right ankle disability impacted his occupational activities due to pain and decreased mobility and strength of the right lower extremity. His daily activities were limited due to his need to use a cane for assistance with ambulation to prevent him from falling and an inability to walk more than 100 feet without holding on to something to prevent falling. Effects on his daily activities were described as severe in regards to exercise and sports; moderate in regards to chores and shopping; mild in regards to recreation, travel, dressing, and driving; and there were no effects on feeding, bathing, toileting, and grooming. The August 2011 examiner opined that the Veteran is unable to sustain employment that requires manual labor with continual mobility and physical stamina. He stated that the Veteran would be best served with a sedentary employment setting. Right ankle pain significantly limited the Veteran's functional ability on a continuous basis. He estimated that function of the right ankle was 70 percent of normal functioning and during a flare-up he would exhibit a 90 percent limitation of functional ability of the right ankle. Based on x-ray findings, the examiner opined that there is no evidence of nonunion or malunion of the os calcis or astragalus. On orthopedic follow-up in September 2011, there was general swelling around the right ankle and tenderness, but range of motion was described as "good" and there was no inflammation. On physical medical rehabilitation consultation in October 2011, the Veteran described intermittent numbness of his bilateral feet and constant right ankle pain and swelling aggravated with activity. Pain was temporarily suppressed with medication. His walking and sleeping were limited secondary to right ankle pain. Functionally, he was independent at bathing, grooming, dressing, feeding, transfers, and driving. He ambulated with a cane. His gait was antalgic and he had difficulty heel-toe walking. Physical examination was limited secondary to pain, however, objective findings included minimal edema of the right foot, normal motor strength (5/5) of the proximal right lower extremity and limited motor strength (4/5) of the distal right lower extremity due to pain. There was no Achilles reflex on the right and there was diminished sensation in the right S1 dermatome to light touch and in the right L5 dermatome to temperature sensation. Palpation of the right foot was positive for allodynia and hyperalgesia. Drawer test was declined due to pain. Motion on inversion, eversion, dorsiflexion and plantar flexion was limited on the right due to pain. Diagnostic impression was chronic pain syndrome, right ankle pain, neuralgia and possible diabetic peripheral neuropathy, right ankle effusion, and gait dysfunction. He was prescribed Lidocaine patches and Neurontin medications for relief. In December 2011, the Veteran denied any falls since his last visit. Pain in his lower extremities remained 9 out of 10 with 10 at worst with only a little relief provided with medication. Pain limited his activities. Diagnostic impression was uncontrolled diabetes mellitus and he was prescribed additional pain medication. In February 2012, the Veteran was given diabetic shoes and socks for foot comfort. In May 2012, the Veteran was ambulatory with use of a cane. He was not taking medication for chronic right ankle pain. His right ankle was tender without swelling. Diagnostic assessment was chronic right ankle pain. In June 2012, the Veteran complained of right ankle tenderness and denied any history of falls. Diagnostic assessments at that time include uncontrolled diabetes mellitus, diabetic nephropathy, and right ankle arthralgia. A prosthetics consultation showed that he was given a right ankle brace. On pain consultation in July 2012, the Veteran felt that his right ankle pain was getting worse since he was last seen in October 2011. Application of Lidocaine ointment to his right knee and ankle was not working and he stopped taking Neurontin medication as it was not effective. He reportedly used sport tape on his right ankle to keep it tight and for stability. He requested a TENS unit as it had been helpful in the past. His activities outside of the home included going to the gym 3 times a week. Physical examination was essentially unchanged since October 2011 and it was noted that functionally, the Veteran was independent with rising from a seated position without assistance and with walking. Diagnostic assessments included chronic pain syndrome, right ankle pain, neuralgia/possible diabetic neuropathy, right ankle effusion, and gait dysfunction. Neurontin and Lidocaine ointment were discontinued and treatment with a TENS unit was started. He was referred to physical therapy for strength training, range of motion, desensitization. He was prescribed Tramadol 50 mg. as needed for pain. A prosthetic consultation was placed for athletic tape for right ankle stability. IV. Legal Criteria and Analysis Historically, service connection for posttraumatic degenerative arthritis of the right ankle was granted in a 1993 rating decision, which assigned a 10 percent evaluation effective September 4, 1992. The current claim stems from continuation of the previously assigned 10 percent disability rating following a periodic VA examination relating to his right ankle disability on January 29, 2007. The Veteran contends that his right ankle disability is more severely disabling than is reflected by the 10 percent disability rating currently assigned under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5010-5271, prior to October 16, 2009, and since November 1, 2010. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings, i.e., disability ratings for separate periods of time based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. As the issues on appeal are for higher ratings, consideration of whether the criteria for the current ratings are met is not necessary and the analyses below will focus on whether the Veteran meets the criteria for the next higher rating for his service-connected right ankle disability. The Veteran's right ankle disability has been rated under DCs 5010-5271. In evaluating the Veteran's current level of disability, the Board will consider all applicable DCs. Diagnostic Code 5010 addresses the issue of arthritis due to trauma, substantiated by x-ray findings, which is to be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Code 5271 specifically applies to limitation of motion of the ankle. This diagnostic code provides a 10 percent rating for symptomatology reflective of disabilities with moderate limitation of motion and a 20 percent rating for disabilities involving marked limitation of motion. A 20 percent is the maximum evaluation provided under Diagnostic Code 5271. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Normal range of motion of the ankle is dorsiflexion from zero to 20 degrees; and plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). The words "moderate" and "marked" are not defined in DC 5271. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2012). However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). V. Analysis Having carefully considered the Veteran's contentions in light of the evidence of record and applicable law, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that both prior to October 16, 2009, and since November 1, 2010, the Veteran's right ankle disability warrants the assignment of a 20 percent disability rating, but no greater, for the entire periods on appeal. Hart, supra. Prior to October 16, 2009, range of motion of the Veteran's right ankle was, at worst, from 0 to 10 degrees on dorsiflexion, with pain at 10 degrees (see January 2007 and July 2008 VA examination reports), and from 0 to 20 degrees on plantar flexion, with pain at 20 degrees (see July 2008 VA examination report). Additionally, in June 2006, the Veteran indicated that right ankle pain sometimes interfered with his ability to work as a phone engineer. At that time, severe pain was noted on full dorsiflexion of the right ankle. During VA examination in July 2008, the Veteran noted that there were times that he had to rest during exacerbations of severe ankle pain. Additional symptoms associated with severe ankle pain at that time included weakness, stiffness, and fatigue while standing or stiffness while at rest. The Veteran's right ankle disability limited his ability to stand for longer than 30 minutes and walk more than 50 yards. From November 1, 2010, range of motion of the Veteran's right ankle was, at worst, from 0 to 10 degrees on dorsiflexion in March 2011. On VA examination in August 2011, range of motion of the right ankle was from 0 to 15 degrees on dorsiflexion, with pain at 15 degrees, and from 0 to 30 degrees on plantar flexion with pain at 30 degrees. After repetitive range of motion testing of the right ankle, range of motion was further limited to 10 degrees on dorsiflexion and to 25 degrees on plantar flexion. Moreover, the August 2011 VA examiner stated that " [the Veteran's] right ankle pain significantly limited functional ability on a continual basis - 70 percent of normal functioning. During flare-ups, [he] would exhibit a 90 percent limitation of functional ability of [the] right ankle." The Board also notes that during the March 2011 hearing, the Veteran indicated that he had used a either a cane or an ankle brace for right ankle symptomatology throughout both rating periods under consideration. Under these circumstances, the Board finds that the severity of the Veteran's right ankle disability, both prior to October 16, 2009, and since November 1, 2010, more closely approximates the criteria for marked limitation of motion. Accordingly, a 20 percent evaluation, but not greater, is warranted for the entirety of both rating periods on appeal. The Board further finds that there have been no distinct periods of time during either rating period dating prior to October 16, 2009, or since November 1, 2010, which the disability is compensable to a degree greater than 20 percent. He is accordingly not entitled to receive "staged" ratings. Hart, supra. A 20 percent rating is the maximum schedular evaluation available for limited ankle motion under Diagnostic Code 5271. Absent evidence of ankylosis, however, a higher evaluation is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (a 30 percent evaluation is warranted when there is ankylosis if the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees); Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (if a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable). In this case, during not rating periods currently for appellate consideration dating prior to October 16, 2009, and since November 1, 2010, ankylosis of the right ankle has also not been shown at any time. Indeed, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). Despite the presence of pain throughout range of motion, the Board concludes that ankylosis has not been shown by either physical examination or x-rays, nor is the degree of impairment present been shown to be akin to ankylosis given that he remains capable of significant range of motion. As such, the evidence does not support a higher rating under Diagnostic Code 5270 for ankylosis. Finally, the Board finds that several diagnostic codes pertaining to evaluation of ankle disabilities are inapplicable in this case. There is no indication that the Veteran's right ankle disability warrants an increased or separate rating under any diagnostic code not discussed above. The claims folder contains no medical evidence indicating that the Veteran's right ankle disability is manifested by ankylosis of the ankle, ankylosis of the subastrangalar or tarsal joint, malunion of the os calcis or astragalus, astragalecotmy, or symptoms other than those discussed above. As such, an increased rating cannot be assigned for the ankle under DCs 5270 or 5272-5274. See 38 C.F.R. § 4.71a, DCs 5270 or 5272-5274 (2012). The Board acknowledges that that there had been some question as to whether there was evidence showing malunion of the os calcis or astralgus or astragalectomy. See 38 C.F.R. § DCs 5273, 5274. However, x-ray findings dating since the October 2009 Dwyer calcaneal osteotomy showed formation of an apparent bridging bony callus in December 2009, some filling in at the osteotomy site in February 2010, and a good bridging callus across the entire osteotomy in March 2010. In April 2010, nonunion of the osteotomy site was suspected. In June 2010, it was felt that the osteotomy site showed some bony callus formation as compared to prior x-rays and that the Veteran was more than likely experiencing a delayed union. In August 2010, there was no change and it was noted that he would likely have nonunion at the osteotomy site. In December 2010, there was better callus formation and some healing properties of the calcaneus with screw fixation. Finally, in March 2011, axillary view of the heel showed the presence of lateral and medial cortical striations, which indicated completion of the union at the osteotomy site. Moreover, the August 2011 VA examiner opined that following a review of x-ray findings dated in March and August 2011, there is no evidence of a nonunion or malunion of the os calcis or astragalus. In light of the foregoing, the Board concludes that DCs 5273 and 5274 are not for application at anytime since November 1, 2010. Indeed, the x-ray findings noted above dating from December 2009 to March 2010 showed "filling" and "bridging" at the osteotomy site. Accordingly, these diagnostic codes are not for consideration. 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). In rendering this decision, the Board has considered the lay evidence that the Veteran has offered in support of his claim. The Veteran is competent to note that he has experienced symptoms associated with posttraumatic degenerative arthritis of his right ankle, to include status post Dwyer calcaneal osteotomy. See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994) (stating that the veteran as a lay person is competent to report information of which he or she has personal knowledge, i.e., information that he can gather through his senses). While the Board accepts the Veteran's contentions as to his symptoms, as noted above, numerous examinations have been performed wherein the criteria for an evaluation in excess of the 20 percent assigned herein for posttraumatic degenerative arthritis of his right ankle, to include status post Dwyer calcaneal osteotomy, have not been shown. Accordingly, the weight of the evidence is against a finding that a disability in excess of the 20 percent assigned here in warranted at any time. In summary, the Board finds that for both periods under consideration on appeal, dating both prior to October 16, 2009, and since November 1, 2010, the Veteran's right ankle disability warrants a 20 percent rating, but no higher. VI. Additional Considerations The Board has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis for his right ankle disability. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In Thun v. Peake, the Court set forth a three-step inquiry to determine a veteran's entitlement to an extra-schedular rating. 22 Vet. App. 111 (2008). First, 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 to be inadequate, the Board must determine whether the Veteran's 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 Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. In this case, it is not necessary to go any further than the first step of the Thun analysis. The rating criteria are not inadequate. Specifically, the rating criteria reasonably describes the claimant's disability level and symptomatology of pain, swelling, marked limitation of motion, slight weakness, and fatigue on standing and walking. Thus, the claimant's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is adequate. Higher ratings are available for more serious manifestations of the Veteran's disability considered herein, but the Veteran does not meet those criteria. It does not appear that the Veteran has an "exceptional or unusual" disability; he merely disagreed with the 10 percent evaluation assigned for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplate by the schedular criteria. The available schedular evaluation for his service-connected right ankle disability is adequate. The Veteran's disability picture is contemplated by the rating schedule and no extra-schedular referral is required. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board also notes that the Court has held that the issue of a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when a request for TDIU is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Although entitlement to a TDIU may have been raised by the record, in an August 2009 rating decision, the RO awarded a TDIU. As the Veteran did not express disagreement with the effective date assigned, the matter is not presently before the Board. ORDER Entitlement to a 20 percent evaluation for posttraumatic degenerative arthritis of the right ankle status post Dwyer calcaneal osteotomy is granted for the periods dating both prior to October 16, 2009, and from November 1, 2010, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs