Citation Nr: 1335893 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-03 199 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a disability rating in excess of 20 percent for status post arthroscopic repair of the left ankle, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel REMAND The Veteran had active service from October 1989 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating action in which the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, in pertinent part, denied a disability evaluation greater than 20 percent for a service-connected left ankle disorder. In July 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file. In September 2012, the Board issued a decision in which it denied the Veteran's claim for a rating in excess of 20 percent for status post arthroscopic repair of the left ankle and dismissed a claim for a rating in excess of 10 percent for residuals of fracture of the left mandible with anesthesia of the left mental nerve. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a April 2013 Order, the Court vacated the portion of the September 2012 Board decision that denied a higher rating for the left ankle disorder, and remanded to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). One of the points made by the parties to the joint motion was that the Board did not adequately address the question of an extraschedular rating. An extraschedular disability rating is warranted based upon a finding that a case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is, whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA 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 extraschedular rating. Given the agreement by the parties to the joint motion, the Board now finds that the evidence in this case presents such an exceptional disability picture that the available schedular evaluation for the disability may be inadequate. Despite the fact that the Veteran has been assigned a 20 percent schedular rating for his status post arthroscopic repair of the left ankle, which is the maximum schedular rating he can receive under Diagnostic Code 5271 for limited motion of the ankle, he continues to assert that his left ankle disorder is more severe than contemplated by the diagnostic code. Indeed, the Veteran has reported experiencing pain and instability in his left ankle throughout the pendency of the appeal. VA treatment records dated from April 2008 to December 2008 reflect the Veteran's complaints of ongoing instability and weakness in his left ankle. During the January 2009 VA examination, the examiner noted that the Veteran experienced pain and instability in his left ankle when standing and when applying weight to the left leg, which subsequently made him feel as though the left ankle "will roll on him." The examiner further noted that the Veteran always wore an ankle brace, and had to be very careful when climbing a staircase, and/or walking through snow or on uneven surfaces such as gravel. On physical examination of the left ankle, the examiner noted that the Veteran displayed a mild level of weakness in the left ankle with resisted plantar flexion when compared to the right ankle. In a March 2009 letter, the Veteran's primary care physician at the VA medical center (VAMC) in Indianapolis, Indiana, M.B., M.D., noted that the Veteran required ankle bracing for stabilization of his ankle, and despite wearing an ankle brace and taking two analgesics for relief from his pain, the Veteran continued to experience joint instability and moderate to severe pain on a daily basis. Dr. B. specifically noted that the Veteran's joint instability manifests as "frequently 'rolling' his ankle, difficulty walking especially on unlevel ground, frequent falls, and inability to participate in (various) recreational activities. . . ." Upon reviewing the left ankle magnetic resonance imaging (MRI) report, Dr. B. observed an "[u]nstable osteochondral defect on posteromedial aspect of the talar dome" with "fragmentation and edema of the underlying bony trabecula, as well as what appears to the cortical disruption of the medial aspect of the talar dome." Indeed, the February 2010 and August 2010 VA examiners both noted that the Veteran's left ankle disorder had a significant effect on his occupational activities, and in an undated letter, the Veteran's private podiatrist, R.S., D.P.M., indicated that the Veteran had been under his care for chronic left ankle pain since March 2012, and despite treating the Veteran with ankle supports, NSAIDS, corticosteroid injections, and Synvisc injections to try and alleviate his discomfort and pain, he had not shown significant improvement to date. Dr. S. further noted that he had recommended an Arizona-type brace for the Veteran to help reduce ankle motion and improve stability, and if this failed, surgical intervention may be required. In a September 2013 letter, Dr. B. noted that despite pharmacological and non-pharmacological treatment, the Veteran's symptoms of pain and instability in the left ankle had progressively worsened over the years, and the pain interfered with the Veteran's sleep and employment, as well as his ability to walk comfortably and participate in recreational activities. A review of the various rating criteria pertaining to the ankle reveals that the rating schedule does not specifically contemplate instability of the ankle. In light of the Veteran's complaints of chronic instability and worsening pain in his left ankle, and given that the Board is precluded from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the proper course is to refer the matter to the Director of Compensation and Pension Service for review. Accordingly, the case is REMANDED for the following action: 1. Refer the question of entitlement to a rating in excess of 20 percent for the left ankle disability to the Director, Compensation and Pension Service, for a determination as to whether the Veteran is entitled to assignment of an extraschedular rating in accordance with the provisions of 38 C.F.R. § 3.321(b). The agency of original jurisdiction should include a full statement of all factors having a bearing on the issue, including those factors specifically mentioned above. 2. Thereafter, if the benefit sought remains denied, issue a supplemental statement of the case and give the Veteran and his representative the opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).