Citation Nr: 1337708 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-26 493A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to higher initial ratings for residuals of a left ankle sprain, rated noncompensable from May 21, 2007 to January 24, 2013 and greater than 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that granted entitlement to service connection for residuals of a left ankle sprain and assigned a noncompensable rating, effective May 21, 2007. In a February 2013 rating decision the RO increased the rating for the left ankle disability to 10 percent, effective January 25, 2013. In March 2013, the Veteran testified before the undersigned in a hearing at the RO; a transcript is in the record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claim and such evidence has been considered accordingly. FINDINGS OF FACT 1. Prior to January 25, 2013, the Veteran's left ankle disability has been manifested by intermittent pain; and, a normal range of motion of the left ankle without painful motion. 2. From January 25, 2013, the Veteran's left ankle disability has not been manifested by more than moderate limitation of motion of the left ankle or more than a moderate left foot injury. CONCLUSION OF LAW The criteria for an initial 10 percent rating for residuals of a left ankle sprain have been met since May 21, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5271, 5284 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1). This is an appeal arising from a grant of service connection in an April 2009 rating decision; and as the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify the Veteran in this case has been satisfied. See Hartman v. Nicholson, 483 F.3d 1311 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings-the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the March 2013 hearing, the Veterans Law Judge clarified the issue on appeal and asked questions aimed at substantiating the appeal and identifying any outstanding evidence. The Veteran was offered an opportunity to ask questions regarding his claim. The Board therefore concludes that it has fulfilled its duty under Bryant. Increased disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Fenderson v. West, 12 Vet. App. 119 (1999). All evidence must be evaluated in arriving at a decision regarding the appropriate rating. 38 C.F.R. §§ 4.2, 4.6 (2013). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). VA's policy is to recognize actually painful, unstable or malaligned joints, due to healed injury as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Pain without functional limitation will not support a rating in excess of the minimum. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the diagnostic code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular 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. 38 C.F.R. § 4.59 (2013). Initially, the Board notes all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal, has been reviewed. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran has been assigned a 0 percent disability evaluation for a left ankle disability from May 21, 2007 until January 24, 2013; and 10 percent from January 25, 2013. The disability has been assigned this rating in accordance with the criteria found at 38 C.F.R. Part 4, Diagnostic Code 5271 (2013). Normal ranges of motions of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2012). Diagnostic Code 5271 provides ratings for limitation of motion of the ankle. 38 C.F.R. Part 4 (2013). Moderate limitation of motion warrants a 10 percent rating; the maximum rating of 20 percent is provided for marked limitation of motion. Id. The Veteran's left ankle disability has not been manifested by ankylosis of the ankle; or tarsal joint ankylosis; os calcis or astralagar malunion; or astragalectomy. Therefore Diagnostic Codes 5270; 5272; 5273; and 5274 are not for application. Diagnostic Code 5284 provides that a moderate foot injury warrants a 10 percent evaluation; a moderately severe foot injury warrants a 20 percent evaluation; while a severe foot injury warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Actual loss of use of the foot warrants a 40 percent rating. Id. Loss of use of a hand or foot for purposes of special monthly compensation will be held to exist where the claimant would be equally well served by amputation at the site of election with prosthesis in place. This determination will be made on the basis of whether balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63 (2013). Background Service treatment records reveal that in June 1984, the Veteran sustained an inversion-type sprain while playing basketball. X-rays were negative for fracture but showed an increase in soft tissue. His foot was casted and following removal of the cast the Veteran received extensive physical therapy (PT). A July 1984 PT progress note gives an assessment of status-post ankle sprain with decreased range of motion. When seen on August 14, 1984 for a follow-up, he still complained of pain with running and jumping. He was still doing PT. On observation hyperpigmentation was noted at the exterior malleolus without swelling. Sensation and circulation were normal. He had full range of motion. In April 1985, the Veteran declined a medical examination for separation. In an August 2007 private treatment record, James A. Tatum, M.D. reported the Veteran injured his left ankle while in the military, which was treated with casting. The Veteran reported on and off pain throughout the ankle. Pain was worse with activity. X-rays showed no significant bony or articular abnormalities. Following an examination, the diagnosis was post-traumatic synovitis of the left ankle. Dr. Tatum. recommended an intraarticular corticosteroid injection, which was done. In a March 2008 statement, Anthony D. Watson, M.D., indicated that he had seen the Veteran on August 23, 2007 for a history of left ankle pain for several years. Following physical examination, his diagnosis was post-traumatic synovitis of the left ankle due to the injury the Veteran had sustained while in the military. He was treated with an intraarticular corticosteroid injection which was very helpful in alleviating his symptoms. In a June 2008 VA joints examination report; the Veteran reiterated his history of injuring his left ankle in 1984 while playing basketball. He reported residual nagging pain in the left ankle that never resolved. He now complains of an achy-type pain that occurs about once a week. Prolonged running, walking or standing for too long are aggravating factors which he considers flares. On these occasions, he elevated his foot, used ice, and took Motrin or Aleve. He denied ever respraining the ankle since service. X-rays revealed prominent soft tissue laterally, but no fracture or dislocation. Physical examination revealed the left ankle joint was cool to the touch. There was no erythema or increased temperature. The Veteran reported 0/10 pain on a scale of 10. There was no pain on palpation. The Veteran's gait was steady, normal and without limp. Plantar dorsiflexion was to 20 degrees without pain; and plantar flexion was to 45 degrees without pain. There was no muscle wasting or atrophy. Repetitive motion increased pain slightly to 1/10, but did not did not result in weakness, fatigue, lack of endurance, coordination, or any decrease in range of motion. X-rays revealed no fractures, or dislocations. The diagnoses were left ankle sprain, intermittent, residual pain with no radiographic or clinical evidence to support another diagnosis; and, left ankle synovitis, resolved. At a January 2013 VA examination the Veteran reported the left ankle pain had worsened over the last year. It was like a toothache, 7/10 on scale of 10. The Veteran took Advil or Motrin as needed for pain. Plantar dorsiflexion was 15 degrees with pain; and plantar flexion was to 40 degrees with pain. There was no change in the range of motion after three repetitions. There was no pain on palpation; no functional loss; no ankylosis; and no tenderness on palpation. Strength was 5/5 with no anterior drawer or talar tilt laxity. X-rays revealed no abnormal findings. There was no impairment to his ability to work. At his hearing, the Veteran and his representative contended that his symptoms had been the same throughout the period since the effective date of service connection. Analysis The evidence shows that the Veteran's left ankle has been intermittently painful throughout the appeal period. The 2008 VA examination documented increased pain on repetitive motion. As noted, 38 C.F.R. § 4.59, provides for the minimal 10 percent rating for pain that is a residual of an injured joint. Accordingly, a 10 percent rating is warranted throughout the period since May 21, 2007. A higher rating would require marked limitation of motion under Diagnostic Code 5271. Prior to the 2013 VA examination there were no reports of measurable limitation of motion. At the 2013 examination, the Veteran had most of the normal ranges of ankle motion, even with consideration of the functional impairment. The Veteran has not reported more extensive limitation of motion. Hence there is no evidence of more than moderate limitation of motion. An evaluation in excess of 10 percent would also be possible, if there was moderately severe injury of the foot. The Veteran has left ankle good weight bearing position. His gait is steady, normal and without limp. There is no muscle wasting or atrophy. His strength is 5/5 with no anterior drawer or talar tilt laxity. X-rays reveal no abnormal findings. There is no impairment to his ability to work. Accordingly the weight of the evidence is against a finding that there is marked limitation of ankle motion, or moderately severe foot disability. The Board has also considered whether the Veteran is entitled to an extraschedular evaluation. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based on a finding that the 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 scheduler standards. See 38 C.F.R. § 3.321(b) (1) (2013). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate an Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected left ankle disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disorder with the established criteria found in the rating schedule for those conditions shows that the rating criteria considers loss of motion. The Veteran has been provided a rating that is equivalent to a mild foot disability prior to June 25, 2013; and a moderate foot disability since June 25, 2013. His symptoms are contemplated by the rating schedule. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) (2013) is not warranted. There is also no evidence of unemployability. Referral of the appeal for consideration of entitlement to a total rating for compensation based on individual unemployability (TDIU). 38 C.F.R. § 4.16 (2013). In sum, the weight of the evidence is against a compensable rating prior to January 25, 2013; or a rating in excess of 10 percent after January 25, 2013 for the left ankle disability. Reasonable doubt does not arise and the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2013). ORDER Entitlement to an initial 10 percent rating for residuals of a left ankle sprain is granted, effective May 21, 2007. Entitlement to an initial rating in excess of 10 percent for residuals of a left ankle sprain is denied. ____________________________________________ MARK D. HINDIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs