Citation Nr: 1336800 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-17 731 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for the service-connected left ankle disability (posttraumatic arthritis). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Counsel INTRODUCTION The Veteran had active service from January 1989 to February 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the RO that granted service connection for left ankle disability and assigned a noncompensable rating. During the pendency of the appeal the Veteran had surgery on his ankle and foot twice, in August 2009 and August 2010. A November 2009 rating decision granted a temporary total rating based on convalescence under 38 C.F.R. § 4.30 effective in August 2009. An April 2010 rating decision continued the temporary total rating until October 2010. In a December 2010 rating decision, the RO extended the temporary total rating from October 2010 to January 2011. In a January 2011 rating decision, the RO granted a temporary total rating based convalescence, effective in October 2010 until March 2011 with a no percent rating assigned effective at that time. Basically, the rating decisions have assigned a continuous temporary rating under the provisions of 38 C.F.R. § 4.30 from August 26, 2009 until March 1, 2011. In a January 2012 rating decision, the RO assigned a total rating based individual unemployability by reason of service-connected disability, effective on March 1, 2011. The issue of the underlying initial rating for the service-connected left ankle disability remains on appeal. In August 2012, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. Unfortunately a written transcript of the proceeding could not be produced. In October 2012, the Veteran was offered another hearing. No response was received; therefore, the claim will be evaluated based upon the evidence of record. The Veteran's virtual VA file has been reviewed. FINDING OF FACT The service-connected left ankle posttraumatic arthritis is shown to be productive of a disability picture that more nearly approximates that of marked limitation of motion of the ankle, but not ankylosis. CONCLUSION OF LAW The criteria for the assignment an initial rating of 20 percent, but no more, for the service-connected left ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). A January 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in July 2010. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in October 2006, March 2010, January 2011, and May 2011. The Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations were adequate as the examiners evaluated the Veteran's current disability level and provided findings to allow for proper application of the rating criteria. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Initial Rating In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, premature or excess fatigability, or incoordination is demonstrated, assuming these factors are not already contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or reasonably by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). It is important to note that although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided, as this would violate VA's anti-pyramiding regulation. 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225 (1993). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The service-connected left ankle disability was initially evaluated at noncompensable level under Diagnostic Code (DC) 5271. DC 5271 provides for a 10 percent evaluation for moderate limitation of motion of the ankle and a 20 percent evaluation for marked limitation of motion. Multiple VA examinations have been conducted in this case. At an October 2006 examination, the Veteran reported having flare ups involving the left ankle that were 10/10, usually occurred three times a week, and lasted approximately one day. Range of motion testing noted that there was 20 degrees of dorsiflexion and 45 degrees of plantar flexion with the Veteran reporting an increase in pain at the end point of dorsiflexion. At a March 2010 VA examination, the Veteran reported having left ankle pain of 9/10 radiating to the left heel that was intermittent and sharp and constant throbbing depending on activity that was precipitated by more than 5 minutes of standing or walking further than 50 yards. At a January 2011 VA examination, the range of motion testing was not conducted as the left ankle was immobilized. At a May 2011 VA examination, the range of motion of the left ankle was recorded as being that of 5 degrees of dorsiflexion and 5 degrees of plantar flexion. The diagnosis was that of degenerative joint disease of the left ankle, mild, status post reconstructive surgery of the left foot. At a July 2011 VA examination, the Veteran's range of motion of the left ankle was noted to 5 degrees of dorsiflexion and 10 degrees of plantar flexion. At a VA rehabilitation consultation in September 2011, it was noted that the Veteran reported having two failed surgeries on his ankle/foot. The range of motion for the left ankle was noted to be 3 degrees of dorsiflexion and 15 degrees of plantar flexion. Ankle strength was noted to be 3/5 on dorsiflexion and 4- or 4+/5 on plantar flexion. His functional limitations due to pain were noted to include walking and prolonged standing. Normal range of motion for dorsiflexion is 20 degrees. Normal range of motion for plantar flexion is 45 degrees. Based upon review of the evidence of record, including the Veteran's reports of severe left ankle functional loss caused by pain, the Board finds that the service-connected disability picture is currently shown to more nearly approximates that of marked limitation of motion. Hence, on this record, a 20 percent rating is warranted. The Veteran is competent to report what he experiences through his five senses, such as pain, swelling, loss of strength, and incoordination. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds his reports of functional impairment due to pain and weakness to be competent and credible. Moreover, the most recent examination showed a significant reduction in motion of the left ankle, along with limitation due to pain with walking and prolonged standing. A 20 percent rating is the highest rating available under DC 5271. A higher evaluation is not available under DCs 5270 or 5272 as there must be showing of ankylosis, or the functional equivalent thereof. Ankylosis is the immobility and consolidation of a joint, where the joint cannot move. Dorland's Illustrated Medical Dictionary 747 (30th Ed. 2003). As there is no evidence of ankylosis or its functional equivalent, DCs 5270 and 5272 are not for application. The evidence of record does not demonstrate, nor does the Veteran assert, that he is experiencing ankylosis of the ankle. The VA examinations demonstrated that the Veteran had movement of his ankle. A separate rating under Diagnostic Codes 5273, 5274, is not available as there is no evidence of malunion of os calcis or astragalus or astragalectomy. A February 2011 x-ray studies of the left foot showed no significant change. Hence, on this record, an evaluation higher than 20 percent is not assignable for the service-connected left ankle disability. Extraschedular Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability is demonstrated, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether the assignment of an extraschedular rating is warranted. Id. The manifestations of the service-connected left ankle disability in this case clearly are contemplated by the schedular criteria to the extent that he is assigned the highest rating available without a showing of ankylosis the left ankle joint. There is no showing of an exceptional or unusual disability picture that would obviate the application of the rating schedule. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not warranted. ORDER An increased, initial rating of 20 percent, but not more for the service-connected left ankle disability is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs