Citation Nr: 1339047 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 07-22 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for residuals of injury to the left foot and ankle, evaluated as 10 percent disabling prior to February 28, 2012, and evaluated as 20 percent disabling from February 28, 2012. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from February 1977 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. During the pendency of the Veteran's appeal, the Appeals Management Center (AMC) granted an evaluation of 20 percent for the disability at issue, effective from February 28, 2012. In September 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in February 2012 and January 2013 and was remanded for further development. The Board finds that there has been substantial compliance with its remand directives. FINDINGS OF FACT 1. Prior to January 7, 2009, the Veteran's residuals of injury to the left foot and ankle disability has been manifested by complaints of pain, swelling, limitation of motion, and stiffness; objectively, she had dorsiflexion of 0 degrees and plantar flexion to 40 degrees, analogous to no more than moderate limitation of motion. 2. From January 7, 2009, the Veterans residuals of injury to the left foot and ankle disability has been manifested by complaints of pain, swelling, limitation of motion, and stiffness; objectively, she had dorsiflexion at -5 degrees and plantar flexion of 5 to 25 degrees, analogous to marked limitation of motion. 3. The Veteran is service connected for left foot pes planus, evaluated as 20 percent disabling, and for left foot hallux valgus, evaluated as 10 percent disabling, both effective from March 7, 2011; thus, when combined with her 20 percent evaluation for residuals of left foot and ankle disability, the Veteran is already in receipt of the maximum authorized combined rating of 40 percent for the left below the knee extremity, effective from March 7, 2011. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, prior to January 7, 2009 for residuals of injury to left foot and ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274. 2. The criteria for a rating of 20 percent, and no higher from January 7, 2009 for residuals of injury to left foot and ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-5274. 3. An evaluation in excess of 20 percent for the Veteran's residuals of injury to left foot and ankle disability, from March 7, 2011, is not authorized as it would violate the "amputation rule" set forth in 38 C.F.R. § 4.68 when combined with the Veteran's other service-connected disabilities of the Veteran's left below the knee extremity. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.68 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Complete notice was provided in May 2013, and the claim was subsequently readjudicated in an October 2013 supplemental statement of the case. VA has a duty to assist the appellant in the development of the claim. The claims file includes service treatment records (STRs), post service medical records, and the statements of the Veteran in support of the claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. 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). VA examinations and/or opinions or addendum reports were provided in March 2005, January 2009, February 2011, and January 2013. The Board finds that the VA examinations and reports with addendum are adequate, as they are prefaced on a physical examination, and interviews with the Veteran regarding her symptoms and treatment. The reports of the examinations contain findings necessary to evaluate the Veteran's service-connected disability under the applicable diagnostic code rating criteria. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Ratings - in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). Rating Musculoskeletal system 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 due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 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. With any form of arthritis, painful motion is an important factor of disability, 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. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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. Rating the Foot and Ankle Ankylosis of the ankle is rated under Diagnostic Code 5270. A 20 percent evaluation is assigned with ankylosis of the ankle in plantar flexion at less than 30 degrees. A 30 percent evaluation is assigned with ankylosis in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent evaluation is assigned with ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with an abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a. Limitation of motion of the ankle is rated under Diagnostic Code 5271. A 10 percent evaluation is assigned with moderate limited motion of the ankle, and a maximum 20 percent evaluation is assigned with marked limited motion of the ankle. 38 C.F.R. § 4.71a. The Board notes that words such as "marked" and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2013). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2013). Analysis The Board has reviewed all of the evidence in the Veteran's claim file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board notes at the outset that there is not a specific diagnostic code under the rating schedule for "residuals of injury to the left foot and ankle". Nevertheless, when an unlisted condition is encountered, it is permissible to rate it under a closely related disease or injury to which not only the functions affected, but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2013). (The Veteran's disability stems from a left ankle sprain with subsequent pain and swelling of the ankle and foot in service.) Initially, the Board notes that during the pendency of the Veteran's claim, the Veteran has been awarded additional benefits which affect the current claim. In an October 2012 rating decision, the AMC granted an increased evaluation of 20 percent, effective from February 28, 2012, for the residuals of left foot and ankle disability. In an August 2013 rating decision, the AMC granted service connection for pes planus of the left foot evaluated as 20 percent disabling, and service connection for hallux valgus of the left foot evaluated as 10 percent disabling, both effective from March 7, 2011. In sum, as of March 7, 2011, the Veteran had a 10 percent rating for residuals of injury to the left foot and ankle, a 20 percent rating for pes planus of the left foot, and a 10 percent rating for hallux valgus of the left foot for a combined evaluation of 40 percent for disabilities below the left knee. As of February 28, 2012, the Veteran had a 20 percent rating for residuals of injury to the left foot and ankle, a 20 percent rating for pes planus of the left foot, and a 10 percent rating for hallux valgus of the left foot, for a combined evaluation of 40 percent for disabilities below the left knee. The "amputation rule" set forth at 38 C.F.R. § 4.68 (2013) provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. The regulation elaborates that the combined evaluations for disabilities below the knee shall not exceed the 40 percent evaluation under Diagnostic Code 5165. Therefore, the Veteran is not entitled to a rating in excess of 20 percent for the residuals of the left foot and ankle from February 28, 2012 because any increase to the next higher rating (i.e. 30 percent), combined with the Veteran's ratings for pes planus and hallux valgus, would exceed a 40 percent combined rating and would violate the amputation rule. As the provisions of 38 C.F.R. § 4.68 limit the combined rating for the Veteran's lower extremity below the knee to 40 percent, the Veteran, as a matter of law, cannot be granted a disability evaluation in excess of the assigned 20 percent from February 28, 2012 for the disability at issue because a higher scheduler rating is prohibited. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, this portion of the appeal is denied. For the period from March 7, 2011 to February 28, 2012, the maximum possible rating for the residuals of injury to the left foot and ankle disability would be 20 percent, if warranted, as anything higher would violate the amputation rule. For the period prior to March 7, 2011, the amputation rule would not be pertinent, as the only service-connected disability was the residuals of injury to the left foot and ankle disability. The Veteran's residuals of injury to the left foot and ankle disability is evaluated as 10 percent disabling prior to February 28, 2012. The Veteran would be entitled to a 20 percent evaluation if she had "marked" limited motion of the left ankle (DC 5271) or ankylosis of the ankle in plantar flexion of less than 30 degrees. (DC 5270), astragalectomy (DC 5274), malunion of the os calcis or astragalus with marked deformity (DC 5273), or ankylosis of subastragular or tarsal joint in poor weight-bearing position (DC 5272). A March 2005 VA examination report reflects that the Veteran denied any problems with her left foot. With regard to her left ankle, she reported pain which was intermittent and rated as a "7". She reported weakness, stiffness, swelling, heat, and instability. She reported that she used Motrin four times a day with a slight decrease in symptoms, and that pain increases to a "10" once a month and lasts for four to six hours. She reported a 25 percent increase in impairment during flare-up. She reported that she occasionally used a left ankle brace but did not use a cane. She denied any dislocation or subluxation. Upon examination in 2005, the Veteran's ankle had dorsiflexion of 0 degrees, and plantar flexion was to 40 degrees. She had increase in pain but no decrease in range of motion with repetitive testing. She had mild fatigue, weakness and lack of endurance with repetitive testing. The examination assessment was normal left foot with no problems on examination, and left ankle with minimal osteoarthritis with mild to moderate impairment secondary to pain and decreased range of motion. The Veteran had no abnormal gait. Because the evidence in March 2005 is against a finding of marked limited motion or ankylosis of the ankle in plantar flexion of less than 30 degrees, the Veteran's disability does not warrant a rating in excess of 10 percent for that time period under DC 5270 or DC 5271. There is also no competent evidence of astragalectomy, malunion of the os calcis or astragalus with marked deformity, or ankylosis of subastragular or tarsal joint in poor weight-bearing position; therefore a rating in excess of 10 percent is not warranted under DCs 5274, 5273, or 5272. In a May 2006 statement, the Veteran reported that she "occasionally" wears a support brace for her left ankle. A June 2006 VA podiatry record reflects that the Veteran had edema to the feet and ankles. A July 2006 VA podiatry record reflects that the swelling in the feet decreased since the Veteran was wearing compression hose. In a July 2007 VA Form 9, the Veteran asserted that she has intermittent swelling and pain of the ankle after her body gets "immune" to Motrin. The records are negative for any clinical findings of marked limited motion of the left ankle or ankylosis of the ankle in plantar flexion of less than 30 degrees, astragalectomy, malunion of the os calcis or astragalus with marked deformity, or ankylosis of subastragular or tarsal joint in poor weight-bearing position. Moreover, although the Veteran complained of pain, she did not contend that she had ankylosis or marked limited motion due to such pain. The clinical records reflect "painful bumps on the top of both feet" and do not reflect pain with ankle motion. A January 7, 2009 VA examination report reflects that the Veteran reported giving way, instability, pain, stiffness, weakness, decrease speed of joint motion, and locking episodes of one to three times a month, of the ankle. She denied deformity, dislocation or subluxation and effusion. She reported moderate weekly flare-ups lasting for one to two days. She reported use of corrective shoes and braces which were reportedly not helpful. She also reported that she was unable to walk more than a few yards, stand more than 15- 30 minutes, or wear shoes during a flare-up. Upon examination, there was no instability, tendon abnormality, angulation, swelling, abnormal weight bearing, or ankylosis. She had tenderness, pain at rest, weakness, abnormal motion, and guarding of movement. The examiner noted that the Veteran had antalgic gait and poor propulsion. With regard to ankle range of motion, the Veteran had left dorsiflexion of "-5 to -5 degrees" and left plantar flexion of 5 to 25 degrees. There was objective evidence of pain with active motion; however, there was no additional limitation after repetitive use. There was no joint ankylosis. It was noted that the Veteran had to use the aid of a stool to prop her legs to put on her socks and shoes; however, this was noted to be due to her bilateral knee range of motion. In sum, the Veteran had no more than moderate limitation of motion of plantar flexion as she was able to move from 5 to 25 degrees. Normal plantar flexion is from 0 to 45 degrees, thus, the Board finds that 5 to 25 is no more than moderate limitation. However, the Veteran had limitation of dorsiflexion at -5 degrees, or limited to 5 degrees of plantar flexion (i.e. with the foot pointed downwards.) A subsequent January 2013 addendum to the Veteran's February 2012 examination report explained the Veteran's lack of dorsiflexion. The Board finds that the explanation is helpful to understanding the Veteran's dorsiflexion limitation in 2009. The examiner noted that the Veteran, in 2012, had ankylosis at the subtalar joint (substragalar) which limited the motion; however the other joints of the ankle compensate for the ankylosis of the subtalar joint and allow for joint motion from 10 to 30 degrees of plantar flexion. The Board notes that ankylosis of the substragalar or tarsal joint in good weight-bearing position warrants only a 10 percent evaluation. (The record is against a finding that the Veteran had poor weight-bearing position). When combining the Veteran's plantar flexion range with her lack of dorsiflexion range, and in giving the Veteran the benefit of the doubt, the Board finds that she had marked ankle limitation of motion, which warrants a 20 percent rating, and no higher. The Veteran did not have ankylosis of the entire ankle joint; therefore, a rating under DC 5270 is not warranted. (The January 2013 VA addendum states that the subtalar joint is part of ankle but below the proper ankle joint, and ankylosis of the subtalar joint still allows some motion as the other joints of the ankle are still mobile. Moreover, the 2009 VA examiner found that the Veteran did not have ankylosis.) The Board has considered the factors noted in DeLuca and has considered the clinical findings; however, even with such consideration, the evidence does not reflect that the Veteran's symptoms are so severe as to be synonymous, or closely approximate to, ankylosis at a level which would provide for a higher evaluation. As noted above, the 2009 examiner found that, although there was objective evidence of pain with active motion, there was no additional limitation of motion after repetitive use. Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating. The Board has also considered whether there is sufficient evidence to warrant a rating of 20 percent prior to January 7, 2009, but finds that there is not. In conclusion, a rating of 20 percent, and no higher, for residuals of injury to the left foot and ankle from January 7, 2009, and no earlier, is warranted. The Board need not further discuss the clinical records and examination reports after March 7, 2011 because the Veteran is not authorized a higher rating from that time period because her combined rating for the left lower extremity below the knee is 40 percent, the maximum allowable under the "amputation rule". Thus, those records are not pertinent to the schedular rating. There are no records between January 7, 2009 and March 7, 2011 which reflect that a higher evaluation is warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular 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). An extraschedular disability rating is warranted based upon 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 schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The discussion above reflects that the symptoms of the Veteran's residuals of injury to the left foot and ankle disability are contemplated by the applicable rating criteria. The diagnostic code allows for ratings based on severity of impairment and uses terms of "marked" and "moderate". Although the rating criteria do not specifically note pain, stiffness, and swelling, such factors are considered when making determinations as to how they affect range of motion. In analyzing whether the Veteran is entitled to an extraschedular rating the Board has considered the entire claims file, to include those records after March 7, 2011. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The January 2009 VA examination report reflects that the Veteran was working as a customer service representative for an insurance company, and also employed part time as travel agent. It was noted that she has a Masters degree in business and was getting a Masters degree in education on-line. The Board acknowledges the Veteran's statement to the examiner that she has been penalized at work "for getting off the phones to take a break because of stiffness of the lower extremities" and that sometimes she has had to miss work because of her ankle. However, the evidence reflects that the Veteran is employed, and has been able to maintain such employment despite taking occasional breaks or missing work occasionally. The evidence is against a finding that a claim for TDIU has been reasonably raised by the record. ORDER Entitlement to a rating in excess of 10 percent disabling for the period prior to January 7, 2009 for residuals of injury to the left foot ankle injury is denied. Entitlement to a rating of 20 percent disabling, and no higher, for the period beginning January 7, 2009, for residuals of injury to the left foot ankle injury is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs