Citation Nr: 1336059 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-48 079 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial disability rating (or evaluation) in excess of 10 percent for left healed medial malleolus with residual pain status post open reduction/internal fixation (hereinafter "left ankle disability"). REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 1982 to June 1990. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, which, in part, granted service connection for a left ankle disability and assigned an initial disability rating of 10 percent. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in May 2013. A transcript of the hearing is of record. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT For the entire period on appeal, the Veteran's left ankle disability has been manifested by symptoms of continuous pain, stiffness, loss of plantar flexion, and loss of dorsal flexion and more closely approximates marked limitation of motion of the left ankle. CONCLUSION OF LAW Resolving reasonable doubt in the favor of the Veteran, the criteria for an initial rating of 20 percent for a left ankle disability have been met for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the initial rating issue decided herein. The RO sent the Veteran a letter in October 2009 that informed him of the requirements needed to establish service connection for a left ankle disability, including information regarding the assignment of ratings and effective dates. As this case concerns an initial rating and comes before the Board on appeal from the decision which also granted service connection, there can be no prejudice to the Veteran from any alleged failure to give adequate 38 U.S.C.A. § 5103(a) notice for the service connection claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination report, Board hearing transcript, and lay statements. Second, VA satisfied its duty obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with a VA examination (the report of which has been associated with the claims file) in April 2010. The Board finds the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's appeal for an initial rating in excess of 10 percent for the left ankle disability. The VA examiner personally interviewed and examined the Veteran, fully reviewed all medical evidence of record, and specifically addressed the symptoms listed in the relevant criteria in the potentially applicable diagnostic codes. In an October 2010 Substantive Appeal and a November 2012 written statement from his representative, the Veteran contended that the comments made by the VA examiner were not included in the examination report, specifically that degradation of the left ankle joint would continue to deteriorate as time passed, which would cause more pain and less mobility. In the November 2012 written statement, the Veteran's representative also requested a new VA examination, contending without specificity that the Veteran's left ankle disability had worsened since the April 2010 VA examination, but did not assert the Veteran had ankylosis of or complete or nearly complete loss of motion of the left ankle. As will be discussed below, the Board is granting the maximum allowable disability rating based on limitation of motion under Diagnostic Code 5271 (marked limitation of motion) for the Veteran's service-connected left ankle disability. In this case, there is no assertion or evidence of ankylosis (Diagnostic Code 5270). Thus, the Board finds the request for a new VA examination, in the context of only general assertion of worsening that does not include assertion of ankylosis, does not assert any worsening for which a new VA examination could show findings that a higher rating are met, as additional limitation of motion that is not ankylosis would still warrant a 20 percent rating under Diagnostic Code 5271, as all the additional pain and limited motion would only show marked limitation of motion rather than ankylosis. The Veteran testified at a videoconference hearing before the Board in May 2013. A transcript of the hearing is of record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Initial Rating for Left Ankle Disability Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran is in receipt of a 10 percent disability rating for a left ankle disability under Diagnostic Code (DC) 5271 for limited motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of ankle motion. A 20 percent (maximum) evaluation is prescribed for marked limitation of ankle motion. See 38 C.F.R. § 4.71a. Normal ankle dorsiflexion is from 0 to 20 degrees, and normal ankle plantar flexion is from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II (2013). After review of the lay and medical evidence of record, the Board finds that, for the entire appeal period, the Veteran's left ankle disability has more nearly approximated marked limitation of ankle motion under Diagnostic Code 5271 which warrants a 20 percent (maximum) rating. 38 C.F.R. § 4.71a. For the entire period on appeal, the Veteran's left ankle disability has been manifested by symptoms of continuous pain, stiffness, loss of plantar flexion, and loss of dorsal flexion and more closely approximates marked limitation of left ankle motion required for a 20 percent rating under Diagnostic Code 5271. Id. In April 2010, the Veteran underwent a VA examination. The Veteran reported continuous pain in his ankle located medially. The Veteran reported that he is able to walk 30 minutes or one to two blocks, flare ups that occur every day that are usually caused by running, twisting or standing on his foot for long periods of time, and that his left ankle disability affects his daily activity by limiting his ability to stand and walk. The VA examination report notes that the Veteran has prominent hardware in his left ankle with painful irritation over that prominence. The VA examiner noted that the Veteran had palpable dorsalis pedis pulse. The left ankle range of motion was 15 degrees dorsiflexion and 30 degrees of plantar flexion. Upon repetitive testings, there was no further reduction in the Veteran's range of motion, and his pain level remained the same. The VA examiner noted no instability in the left ankle. The VA examiner noted pain and loss of motion in the Veteran's left ankle, noting it was certainly conceivable that the Veteran could have increased pain and loss of motion as described, particularly after activity; however, the VA examiner opined that to address this additional pain and loss of motion would be mere speculation. In May 2013, the Veteran testified at a Board hearing. The Veteran reported using a cane to assist in walking, antiflammatory medication, and a flexible ankle brace when his left ankle disability is particularly bad. The Veteran reported experiencing flare ups two to three times a month. The Veteran reported shooting pain that goes down the center of the arch of his foot and also shoots up his calf at the side of the hardware in his left ankle. The Veteran stated that the pain radiated into his foot when he overexerts himself or climbs stairs. The Veteran reported stiffness or pain in his left ankle in the mornings, as well as pain with activity. The evidence shows that the left ankle disability has been manifested by symptoms of continuous pain, stiffness, loss of plantar flexion, and loss of dorsal flexion. When viewing the disability picture as a whole, the Board finds that the evidence shows that the left ankle disability approximates marked limitation of left ankle motion. Resolving reasonable doubt in favor of the veteran, the Board finds that a higher initial rating of 20 percent under Diagnostic Code 5271 is warranted for the entire rating period. The 20 percent rating is the maximum allowable under Diagnostic Code 5271. 38 C.F.R. §§ 4.3, 4.7. The Board notes that no higher or separate schedular rating is warranted under any of the other codes pertaining to the ankle. For point of explanation, ankylosis is "[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint." Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman's Medical Dictionary 87 (25th ed. 1990)). The evidence shows that the Veteran's left ankle disability is not manifested by ankylosis for any period; therefore, a higher rating is not warranted under either Diagnostic Code 5270 for ankle ankylosis or Diagnostic Code 5272 for subastragalar or tarsal joint ankylosis. Also, the evidence does not show that the Veteran's left ankle has undergone astragalectomy or is manifested by malunion of os calcis or astragalus; therefore, a rating under Diagnostic Code 5274 or 5273 is not warranted. 38 C.F.R. § 4.71a. Finally, the Board notes that the Veteran has a residual surgical scar on his left ankle from when he underwent the open reduction/internal fixation for the left medial malleolar fracture. The Veteran underwent a VA examination with regard to the scar in August 2013 at which he reported no problems with the scar. The VA examination report notes that the scar was not painful, tender, or unstable. Nor has the Veteran alleged otherwise. Therefore, the Board finds that the Veteran is not entitled to a separate compensable rating under Diagnostic Codes 7800 through 7805. 38 C.F.R. § 4.118. Extraschedular Consideration The Board has considered whether an extraschedular evaluation would have been warranted for PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board does not find any functional impairment or symptoms that are not already encompassed by the 20 percent schedular rating. The schedular rating criteria contemplate the impairments and symptoms associated with the ankle disability. The Veteran's left ankle disability has been manifested by symptoms of continuous pain, stiffness, loss of plantar flexion, and loss of dorsal flexion. The 20 percent schedular rating for marked limitation of motion was awarded with consideration of such symptomatology and the resultant functional impairment (e.g., reported limitations of difficulty standing and walking; pain when climbing stairs). The functional effects of pain and stiffness have been taken into account as limiting motion or function, and are incorporated into the schedular rating criteria, so are contemplated in the assigned ratings. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 205-06. In the absence of exceptional factors associated with the service-connected left ankle disability, the Board finds that the criteria for submission for assignment for an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. At the May 2013 Board hearing, the Veteran reported that he is currently working making medical parts. While the Veteran has stated he had to change employment because of his left ankle disability, he has not alleged that he is, or was at any time, unemployable on account of his left ankle disability. Thus, the Board finds that Rice is inapplicable because neither the Veteran nor the evidence suggests unemployability due to the service-connected left ankle disability. ORDER An initial disability rating of 20 percent for a left ankle disability, but no higher, is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs