Citation Nr: 1336841 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 07-27 552 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating in excess of 10 percent for the service-connected hypertension. 2. Entitlement to a rating in excess of 10 percent for the service-connected right wrist injury residuals. 3. Entitlement to a compensable rating prior to April 27, 2011, and a rating in excess of 10 percent for the period beginning April 27, 2011, for the service-connected left ankle disability. 4. Entitlement to a rating in excess of 20 percent for the service-connected lumbar spine disability. 5. Entitlement to a rating in excess of 10 percent for the service-connected radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1986 to June 1995. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the RO in St. Louis, Missouri. The RO in Boston, Massachusetts now maintains original jurisdiction over the Veteran's appeal. The appeal was previously before the Board in January 2011 when the claims were remanded for further development, including examinations. The Board has reviewed the Veteran's records in the Virtual VA and Veterans Benefits Management System in conjunction with its consideration of this appeal. The Veteran asserted in a July 2013 Informal Hearing Presentation that his appeal for increased ratings requires consideration of an inferred claim for a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability under the guidance of Rice v. Shinseki, 22 Vet. App. 447 (2009). This is not, however, a situation where a current claim for a TDIU rating may be considered on appeal. The Veteran asserted a claim of a TDIU rating in an August 2005 submission; that claim was denied in the March 2006 rating decision, and although the Veteran appealed the other five issues addressed in that rating decision, he did not appeal the denial of a TDIU rating . The Veteran again asserted a claim for TDIU in March 2009, after already having perfected his appeal of the five issues addressed in this decision. The RO denied his claim in August 2009, and the Veteran did not file a Notice of Disagreement. The assertion of entitlement to a TDIU rating in the July 2013 Informal Hearing Presentation must therefore be construed as a new claim for a TDIU rating. As this claim has not yet been adjudicated by the Agency of Original Jurisdiction, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The issues of increased rating for the service-connected lumbar spine disability and radiculopathy involving the right lower extremity are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a July 2013 submission by his representative, prior to the promulgation of a decision, the Veteran indicated his intention to withdraw the issues of increased ratings for the service-connected hypertension and the residuals of a right wrist injury from his appeal. 2. For the period prior to April 27, 2011, the service-connected left ankle disability is shown to have been manifested by marked limitation of motion, including limitation of dorsiflexion to 0 degrees following repetitive use. 3. For the period beginning April 27, 2011, the service-connected left ankle disability is shown to be manifested no more than moderate limitation of motion; including after repetitive use, with a full 20 degrees of dorsiflexion and 42 degrees of plantar flexion. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Substantive Appeal by the Veteran, as it relates to the issues of increased ratings for the service-connected hypertension and the residuals of a right wrist injury, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. For the period prior to April 27, 2011, the criteria for the assignment of a rating 20 percent rating, but not higher for the service-connected left ankle disability have been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5271 (2013). 3. For the period beginning April 27, 2011, the criteria for the assignment of a rating in excess of 10 percent for the service-connected left ankle disability have not been met. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings for Hypertension and the Residuals of a Right Wrist Injury Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. In July 2013, the designated representative submitted a letter to the Board indicating that the Veteran no longer wished to pursue his appeal as to the matters for increased ratings for the service-connected hypertension and the residuals of a right wrist injury. Hence, there remain no allegations of error of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of the issue and it is dismissed without prejudice. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In a claim for increase, VCAA requires only generic notice as to the type of evidence needed to substantiate the claim; namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Such notice was provided to the Veteran in November 2005. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and examination. The results of an April 2011 VA examination, as requested by the January 2011 remand, are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. The Veteran's representative agreed, in a July 2013 submission, that all available and necessary evidence related to the increased rating claim for the service-connected ankle disability was associated with the claims file. For these reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 38 C.F.R. § 3.159(c). Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In claims for increased rating VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function, however, will be expected in all instances. 38 C.F.R. § 4.21. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Rating Criteria for the Ankle Generally, ankle disabilities are rated on the basis of limitation of motion. Currently, the service-connected disability is rated at a noncompensable level prior to April 27, 2011 when a 10 percent is assigned. Under Diagnostic Code 5271, "moderate" limitation of motion is rated as 10 percent disabling, while "marked" limitation of motion is provided a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Other Diagnostic Codes related to the ankle are not applicable, based on the evidence of record. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272-5274. Normal dorsiflexion of the ankle is from 0 to 20 degrees. Normal plantar flexion of the ankle is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Prior to April 27, 2011 The Veteran underwent a VA examination in February 2007. He reported having constant ankle pain, with frequent flare-ups. On most days, his pain rated at a "6 of 10," but on "bad days pain [was] 7-9 of 10." He treated the ankle pain with medication, bracing, ice and heat, and limitation of activities. He was able to stand between three and eight hours, but only if he were able to take short rest periods. He could walk about one-quarter of a mile. Regarding his left ankle, the Veteran reported having instability, giving way, pain, stiffness, weakness, swelling, and tenderness. Severe flare-ups occurred one to two times per week, lasting two to three days at a time, and caused decreased mobility, preventing him from walking well. His gait was noted to be antalgic and slow, with poor propulsion. On examination, he had 0 to 5 degrees of active dorsiflexion, with pain beginning at 5 degrees. Passive dorsiflexion was to 10 degrees, but with pain beginning at 5 degrees. Following repetitive use, pain caused a reduction in the range of motion to 0 degrees. He demonstrated active and passive flexion to 30 degrees, without pain, or loss of motion on repetitive use. There was mild swelling and tenderness on examination, but no evidence of instability or tendon abnormality. The X-ray studies of the left ankle showed normal results. The Veteran argues that the February 2007 examination reports supported the assignment of a 10 percent rating based on "moderate" limitation of motion. The Board finds, however, that a 20 percent rating based on "marked" limitation of motion is clearly suggested. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Dorsiflexion was 5 degrees of a possible 20 degrees on active motion and was noted to be reduced to 0 degrees upon repetitive use. Such a limitation of motion qualifies as "marked" under the applicable criteria. His plantar flexion was no more than "moderate," as he maintained a pain free 30 degrees of motion out of a possible 45 degrees, including after repetitive motion. Although his plantar flexion was no more than "moderate," consideration of the entirety of the disability shows that a more appropriate rating is under the criteria for "marked" limitation of motion. 38 C.F.R. § 4.7. Therefore, for the period prior to April 27, 2011, the Veteran will be granted a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. From April 27, 2011 The Veteran underwent an additional examination for his left ankle in April 2011. He identified having symptoms of pain, tenderness and stiffness, but denied instability, giving way, weakness, incoordination, locking episodes, or episodes of dislocation or subluxation. He denied having flare-ups of the left ankle joint. He did not have limitations on standing and was able to walk more than one-quarter of a mile, but less than one mile. He used a cane intermittently. On examination, the Veteran's gait was noted to be normal. The ankle was tender over the lateral ligaments, but the examiner noted that the ligaments were intact and that the ankle was not unstable. Active range of motion testing demonstrated dorsiflexion to 20 degrees, and plantar flexion to 42 degrees. There was no objective evidence of pain with active motion, nor were there additional limitations after three repetitions of range of motion testing. The examiner diagnosed the Veteran with mild degenerative joint disease of the left ankle, causing limitation of motion. The X-ray studies taken at the time of the April 2011 examination showed minor degenerative spurring on the medial side of the tibiotalar joint. There was a very small plantar calcaneal spur present. Beginning on April 27, 2011, the Veteran was assigned a 10 percent rating based on "moderate" limitation of range of motion. A July 2011 physical therapy note indicated that the ankle was "WFL," meaning either "within full limits" or "within functional limits." Ankle movement was without pain. As for the period beginning April 27, 2011, the Board finds that no more than the current 10 percent rating for "moderate" limitation of ankle motion is warranted. The April 2011 examination results show that the ankle disability was less severe than it was in February 2007. The range of motion had improved, and even following repetitive motion, the Veteran maintained full dorsiflexion (20 degrees) and nearly full plantar flexion (42 degrees of a normal 45 degrees). Further, the Veteran no longer had debilitating flare-ups involving the left ankle, and did not complain of instability. As such, the Board finds that the current 10 percent rating for "moderate" limitation of motion fully addresses the Veteran's current symptomatology. Id. The Board has also considered whether the Veteran's ankle disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's ankle disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology. For the period beginning April 27, 2011, the rating criteria provides for consideration of greater disability and symptoms than currently shown by the evidence. For the period prior to April 27, 2011, in addition to the fact that the rating criteria for "marked" limitation of motion fully address the Veteran's symptoms, he could be provided a higher rating by analogy, such as based on diagnostic codes for ankylosis, were his disability more severe. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. ORDER The appeal of the claim for a rating in excess of 10 percent for the service-connected hypertension is dismissed. The appeal of the claim for a rating in excess of 10 percent for the service-connected right wrist injury residuals is dismissed. For the period prior to April 27, 2011, an increased, initial rating of 20 percent, but no higher, for the service-connected left ankle sprain residuals is granted, subject to the laws and regulations governing the payment of monetary benefits. For the period beginning on April 27, 2011, an increased rating in excess of 10 percent for the service-connected left ankle sprain residuals is denied. REMAND The Veteran asserts that his spine disability, as well as his radiculopathy of the right lower extremity, have worsened since the most recent examination. These assertions are supported by physical therapy notes describing increased pain. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that a condition has worsened since the last examination). In this regard, the Board observes that, subsequent to his April 2011 examination, the Veteran had spine surgery. VA has not provided an examination since that time, and it is clear that the evidence of record is insufficient to rate the Veteran's disability. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO should appropriate steps to obtain and associate with the claims file any pertinent records adequately identified by the Veteran referable to ongoing VA treatment. 2. If the Veteran identifies private treatment records for his spine or radiculopathy disabilities, request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed conditions. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file, and the RO must notify the Veteran and his representative of the unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records. 3. The RO then should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected disability . The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating disorders of the spine, the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. 4. The RO also should have the Veteran scheduled for a VA neurological examination to ascertain the current severity of the service-connected radiculopathy. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating neurological disorders, the examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. 5. The Veteran is hereby notified that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examinations, documentation should be obtained which shows that notice scheduling the examinations was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. The RO then must review the examination reports to ensure that they comply with the directives of this remand. If any examination report is inadequate, corrective action must be taken immediately. 7. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and the representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs