Citation Nr: 1337098 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-31 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable evaluation for residuals of a right ankle fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from November 1987 to November 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from December 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a December 2011 decision, the Board denied an initial rating in excess of 0 percent for bilateral pterygia, denied an initial rating in excess of 0 percent for residuals of a right ankle fracture, and granted an initial 10 percent rating for postoperative residuals of a left knee injury. The Veteran appealed the December 2011 decision to the United States Court of Appeals for Veterans Claims (Court or CAVC), only to the extent that it denied a compensable evaluation for residuals of a right ankle fracture. In November 2012, the Court granted a Joint Motion for Partial Remand and the part of the Board's decision that denied entitlement to initial compensable evaluation for residuals of a right ankle fracture was remanded for action consistent with the terms of the Joint Motion. The appeal as to the remaining issues was dismissed. FINDING OF FACT Residuals of a right ankle fracture are manifested by recurring right ankle pain, full range of motion in the right ankle with 0 to 20 degrees dorsiflexion and 0 to 45 degrees planter flexion. There were no additional limitations related to pain, fatigue, incoordination, weakness, or lack of endurance. The Veteran wore a right ankle brace on a daily basis. X-rays of the right ankle were normal. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, for the entire rating period, the criteria for a 10 percent rating, but no more, for residuals of a right ankle fracture are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 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) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. Id. The appeal for a higher initial rating for residuals of a right ankle fracture stems from disagreement with the initial evaluation following the grant of service connection. The RO issued an August 2007 preadjudicatory notice letter regarding the service connection claim which met the VCAA notice requirements. Courts have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. 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 upon receipt of a notice of disagreement). Therefore, no further notice is needed under VCAA regarding this issue. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that July 2007 and December 2007 VA examinations of record are adequate and addressed all the relevant rating criteria for the right ankle. For these reasons, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. VA treatment records, VA examinations, and lay statements have been associated with the record. VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claims, and to respond to VA notices. The Veteran has not indicated any worsening in his condition since his last VA examination and, in a September 2013 post-remand brief, he and his representative did not identify any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2013). With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2013). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2013). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Disabilities of the ankle are rated under Diagnostic Codes 5270 to 5274. Limitation of motion of the ankle may be rated under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent evaluation is assigned for moderate limitation of the ankle, and a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a. Normal ankle dorsiflexion is from 0 to 20 degrees, and normal ankle plantar flexion is from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Increased Rating Analysis The Veteran is currently in receipt of a noncompensable, 0 percent rating for residuals of a right ankle fracture. He contends that an initial compensable rating is warranted for the service-connected right ankle under the provisions of 38 C.F.R. § 4.59. In November 2012, the Court granted a Joint Motion for Partial Remand, and the part of the Board's decision that denied a compensable rating for residuals of a right ankle fracture was vacated and remanded for action consistent with the terms of the Joint Motion. The Joint Motion provides that the Board erred because it did not adequately address the Veteran's painful motion in the context of 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet.App. 1 (2011), noting the Veteran's complaints of right ankle pain and the use of a brace on the ankle. A Court remand is meant to entail a critical examination of the justification for the decision. See Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). After a review of all the evidence, lay and medical, the Board finds that for the entire rating period, residuals of a right ankle fracture are manifested by recurring right ankle pain and full range of motion in the right ankle with 0 to 20 degrees dorsiflexion and 0 to 45 degrees planter flexion. There were no additional limitations related to pain, fatigue, incoordination, weakness, or lack of endurance. The Veteran wore a right ankle brace on a daily basis. X-rays of the right ankle were normal. A September 2007 VA examination included a review of the Veteran's medical records. The Veteran reported dull pain in the right ankle occurring once a month with normal daily activity and cold weather. He did not use corrective devices or assisting devices except for an ankle brace during physical training. The Veteran denied any subluxation, inflammatory arthritis, or prosthesis. His right ankle disability did not result in any limitations to activities of daily activities or to his occupation. On physical examination, the Veteran had 45 degrees planter flexion and 20 degrees dorsiflexion in the right ankle. No further pain, weakness, or increased pain was detected during repetitive movements or when resistance was applied during examination. The VA examiner could not determine, without resort to mere speculation, whether pain, repeated use and pain during flare-ups, fatigue, weakness, lack of endurance, or incoordination caused additional functional loss in the Veterans' personal environment. The Veteran was diagnosed with recurring right ankle pain, post dislocation fracture. November 2008 VA treatment records show that the Veteran wore a lace-up ankle brace. A December 2008 VA examination included a review of the record. The Veteran reported having occasional sharp pain in the right ankle with certain movements. He wore a brace on the right ankle on a daily basis. The Veteran had residual aching and stiffness in the right ankle with cold, damp weather. He took Tylenol and an analgesic balm as needed. A physical examination reflects full range of motion in the right ankle with dorsiflexion from 0 to 20 degrees, planter flexion from 0 to 45 degrees, inversion from 0 to 30 degrees, and eversion from 0 to 20 degrees. The VA examiner noted that the right ankle was not painful with motion. There were no additional limitations noted with three repetitions of movement as related to pain, fatigue, incoordination, weakness, or lack of endurance. The Veteran had no evidence of heat, redness, swelling, or tenderness in the right ankle. X-rays of the right ankle were within normal limits. The Veteran was diagnosed of with an avulsion fracture of the cuboid with a healed distal fibular fracture of the right ankle. The Board finds that a compensable evaluation is not warranted under Diagnostic Code 5271 where the Veteran is not shown to have moderate limitation of motion in the right ankle. VA examinations show that the Veteran had full range of motion in the right ankle with dorsiflexion is from 0 to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. There was no additional functional loss noted with repetition as related to pain, fatigue, incoordination, weakness, or lack of endurance. The Board finds that the Veteran's disability does not approximate a rating based on moderate limitation of motion, even with consideration of functional limitations due to pain and other factors, to warrant a 10 percent rating under Diagnostic Code 5271. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In compliance with the November 2012 Court remand and Joint Motion, the Board has considered whether, in the absence of limitation of motion in the right ankle, whether a 10 percent evaluation may be granted under 38 C.F.R. § 4.59. Section 4.59 provides, in that the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The Veteran was assessed with recurring right ankle pain during a September 2007 VA examination and he reported occasional sharp pain in the right ankle with certain movements as well as aching and stiffness in the right ankle during a December 2008 VA examination. The Board finds that these reports of pain are credible. VA treatment records and the more recent December 2008 VA examination show that the Veteran wore an right ankle brace daily, and the Board finds that this is consistent with a symptomatic right ankle disability. Resolving reasonable doubt in the Veteran's favor, the Board finds that symptoms of pain, related to the right ankle disability, approximate a rating based on an actually painful right ankle joint due to healed injury as described Section 4.59, warranting a compensable 10 percent rating. See 38 C.F.R. § 4.59. Resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent evaluation is warranted under for residuals of a right ankle fracture based on painful motion under 38 C.F.R. § 4.59. See also 38 C.F.R. § 4.71, Diagnostic Code 7271. The Board finds that a separate or higher evaluation under Diagnostic Code 5271 is not warranted. As discussed above, the Veteran did not meet or approximate the criteria for a compensable rating under Diagnostic Code 7271 based on moderate limitation of motion in the right ankle, and the 10 percent evaluation assigned under the provisions of 38 C.F.R. § 4.59 was assigned based on the right ankle joint in the absence of compensable limitation of motion in the right ankle. VA examinations reflect full range of motion in the right ankle and the Veteran did not have additional functional loss in the ankle due to flare-ups of pain, fatigability, incoordination, pain on movement, or weakness. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. Even with consideration of pain and other factors on repetitive use, the Veteran had full range of motion in the right ankle such that his disability does not approximate even a compensable rating under Diagnostic Code 5271; thus, the Board finds that a higher rating is not warranted under that Diagnostic Code. Moreover, the Veteran's symptoms of pain and painful motion have already been considered in assigning his 10 percent evaluation under the provisions of 38 C.F.R. § 4.59. For these reasons, the Board finds that, even with consideration of functional loss due to pain, weakness, and fatigability, and painful motion, service-connected right ankle disability does not more nearly approximate the criteria for higher initial rating, in excess of 10 percent under Diagnostic Code 5271. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a. The Board has considered whether a separate or higher evaluation is available under other provisions of the code. The Veteran, however, is not shown to have ankylosis of the ankle to warrant an evaluation under Diagnostic Code 5270. See 38 C.F.R. § 4.71a. During VA examinations, the Veteran had full range of motion in the ankle and no ankylosis. There is no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy to warrant ratings under Diagnostic Codes 5272-5274. Id. The Board finds, therefore, that a separate or higher evaluation is not warranted for residuals of a right ankle fracture under other provisions of the Diagnostic Code. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. 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. 38 C.F.R. 3.321(b)(1). The Board finds that the symptomatology and impairment caused by residuals of a right ankle fracture are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, including Diagnostic Codes 5270-5274 specifically provide for disability ratings based on limitation of motion and function or other specific abnormalities, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59 (2013); see also DeLuca. In this case, considering the lay and medical evidence, the Veteran's right ankle disability has been manifested by pain with no limitations to range of motion in the ankle or ankle function due to pain. The Veteran's symptoms are contemplated by the schedular rating criteria. The Board has additionally considered ratings under alternate schedular rating criteria as discussed above. See 38 C.F.R. § 4.20 (schedular rating criteria provides for rating by analogy based on similar functions, anatomical location, and symptomatology). The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. During VA examinations, the Veteran reported having no limitations to performing activities of daily living and no functional limitations to his occupation due to the right ankle. The Veteran reported during the December 2008 VA examination that he had not taken any sick leave due to the right ankle. Accordingly, the Board finds that any functional limitations imposed by the Veteran's disability are contemplated by the rating criteria discussed above, including the effect of right ankle pain and the need for use of a brace. In the absence of exceptional factors associated with the right ankle disability, the Board finds that the criteria for submission for assignment of 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). ORDER A 10 percent rating, but no more, is granted for residuals of a right ankle fracture. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs