Citation Nr: 1339784 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-32 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for left shoulder disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to a disability rating in excess of 10 percent for service-connected traumatic arthritis, right ankle, with osteochondritis dissecans (hereafter "right ankle disability") prior to September 12, 2011, and in excess of 20 percent thereafter. 4. Entitlement to a temporary total disability rating (100 percent) for convalescence. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from May 1973 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that, in the April 2010 rating decision on appeal, the RO granted a 10 percent disability rating for the Veteran's right ankle disability, with which the Veteran disagreed. Subsequently, in a November 2011 rating decision, the RO granted a 20 percent disability rating effective September 12, 2011. The Veteran has continued his disagreement with the disability ratings assigned. In April 2011, a hearing was held at the RO before a Decision Review Officer. A transcript of that hearing is in the claims file. In addition, the Veteran appeared and testified at a Board videoconference hearing held before the undersigned Veterans Law Judge in September 2012. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The Board notes that the Veteran's claims were previously remanded in February 2013 for additional development. At this time, the Board finds that the prior remand has been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claims. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The evidence establishes that it is as likely as not that the Veteran's osteoarthritis of the left shoulder is related to his military service. 2. The evidence establishes that it is as likely as not that the Veteran's osteoarthritis of the lumbar spine is related to his military service. 3. Prior to September 12, 2011, the Veteran's right ankle disability was productive of a disability picture consistent with marked limitation of motion of the ankle. 4. A temporary total disability rating for convalescence is warranted due to surgery for the Veteran's service-connected right ankle disability that was conducted on September 28, 2012 that required convalescence of at least one month. 5. The Veteran's right ankle disability was not productive of ankylosis at any time during the appeal period. 6. The Veteran's service-connected right ankle disability does not represent an exceptional or unusual disability picture rendering the rating schedule inadequate. CONCLUSIONS OF LAW 1. Osteoarthritis of the left shoulder was incurred in service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. Osteoarthritis of the lumbar spine was incurred in service. 38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 3. Prior to September 12, 2011, the criteria for a disability rating of 20 percent for service-connected right ankle disability were met. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5271 (2013). 4. The criteria for a temporary total disability rating (100 percent) for convalescence were met from September 28, 2012 to October 31, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.30 (2013). 5. The criteria for a disability rating in excess of 20 percent for service-connected right ankle disability were not met except for the period of September 28, 2012 to October 31, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code 5270, 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims In this decision, the Board grants service connection for osteoarthritis of the left shoulder and lumbar spine, which represents a complete grant of the benefits sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Left Shoulder Disorder The Veteran alleges that his current left shoulder disorder was caused by an injury sustained in service. At the September 2012 Board videoconference hearing, the Veteran testified that his left shoulder began bothering him when he was injured playing basketball for his squadron in an Air Force intramural competition. He testified that he was stationed at Bergstrom Air Force Base, where there was no orthopedic clinic. He testified that he has experienced pain in his shoulder since that time, and he currently receives VA treatment for it. The evidence of record, including VA treatment records and a June 2013 VA examination report, reflects a diagnosis of osteoarthritis (a.k.a. degenerative joint disease) of the left shoulder. Consequently, the first criterion of having a current disability has been met. Service treatment records show complaints of left shoulder pain in November 1975 and April 1981 without a diagnosis of any condition rendered. The Veteran, however, underwent a Medical Board Evaluation in September 1981 at which he reported he developed left shoulder pain which had been tentatively diagnosed as arthritis in early 1981. On physical examination, there was tenderness over the anterior shoulder joint and over the biceps tendon. There was no limitation of motion. The diagnosis was arthritis of the left shoulder. Physical Evaluation Board report dated in October 1981 indicates discharge was recommended due to a diagnosis of post-traumatic arthritis, right ankle, associated with left shoulder pain and low back pain. In contrast to the service treatment records, VA examination conducted in January 1982 resulted in a diagnosis of "Intermittent pain posterior aspect of left shoulder cause undetermined. Essentially normal to examination at this time, no significant impairment of function." X-ray report dated December 31, 1981 of the left shoulder was noted to be normal. Consequently, as there are some complaints of pain in the left shoulder seen in the service clinical records as well as physical findings of a left shoulder disorder on the September 1981 Medical Board evaluation, the Board resolves reasonable doubt that the Veteran had something in service although not necessarily osteoarthritis as this was not shown by X-ray evidence. Thus, the second element for service connection is also met. In February 2013, the Board remanded the Veteran's claim to obtain a VA examination, which was conducted in June 2013. The examiner diagnosed the Veteran to have osteoarthritis of the left shoulder and opined that this was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale was that, given the available information from the medical records and the Veteran's physical examination, the condition mentioned in the Medical Board appears to have become chronic and the condition noted in service is the same one that he currently has. The Board notes that there is no medical evidence contrary to the VA examiner's opinion. Although the evidence does not clearly establish that the Veteran had a chronic condition in service, especially osteoarthritis, or that osteoarthritis was present within one year of his discharge from service, the Veteran has stated that he has had a continuity of symptomatology since service and the VA examiner opined that his current left shoulder osteoarthritis is the same as the condition noted in service. Consequently, the Board finds that the evidence is at least in equipoise that the Veteran's current left shoulder osteoarthritis is related to his military service, and reasonable doubt must be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Service connection for osteoarthritis of the left shoulder is, therefore, warranted. Low Back Disorder The Veteran alleges that his current low back disorder was caused by an injury sustained in service. At the September 2012 Board videoconference hearing, the Veteran testified that his back began bothering him when he was injured playing basketball for his squadron in an Air Force intramural competition. He testified that he was stationed at Bergstrom Air Force Base, where there was no orthopedic clinic. He testified that he has experienced pain in his back since that time, and he currently receives VA treatment for it. The evidence of record, including VA treatment records and a June 2013 VA examination report, reflects a diagnosis of osteoarthritis (a.k.a. degenerative joint disease) of the lumbar spine. Consequently, the first criterion of having a current disability has been met. Service treatment records are silent for complaints of or treatment for a low back condition. The Veteran, however, underwent a Medical Board evaluation for discharge from service. The October 1981 report of the Physical Evaluation Board indicates discharge was recommended due to a diagnosis of post-traumatic arthritis, right ankle, associated with left shoulder pain and low back pain. In contrast to the service treatment records, however, VA examination conducted in January 1982 resulted in a diagnosis of "Intermittent low back pain probably secondary to altered gait but certainly aggravated by moderate obesity. Minimal impairment of function." X-rays taken the day of examination were normal. Thus, the second element to establish service connection has been met. Consequently, as there is some evidence of pain in the low back seen in the service records but no specific findings of a disorder on physical examination, the Board resolves reasonable doubt that the Veteran had something in service although not necessarily osteoarthritis as this was not shown by X-ray evidence in service or in January 1982. In February 2013, the Board remanded the Veteran's claim to obtain a VA examination, which was conducted in June 2013. The examiner diagnosed the Veteran to have osteoarthritis of the lumbar spine and opined that this was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale was that, given the available information from the medical records and the Veteran's physical examination, the condition mentioned in the Medical Board appears to have become chronic and the condition noted in service is the same one that he currently has. The Board notes that there is no medical evidence contrary to the VA examiner's opinion. Although the evidence does not clearly establish that the Veteran had a chronic condition in service, especially osteoarthritis, or that osteoarthritis was present within one year of his discharge from service, the Veteran has stated that he has had a continuity of symptomatology since service and the VA examiner opined that his current lumbar spine osteoarthritis is the same as the condition noted in service. Consequently, the Board finds that the evidence is at least in equipoise that the Veteran's current osteoarthritis of the lumbar spine is related to his military service, and reasonable doubt must be resolved in the Veteran's favor. 38 C.F.R. § 3.102. Service connection for osteoarthritis of the lumbar spine is, therefore, warranted. II. Increased Rating Claim for Right Ankle Disability Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). For a claim seeking increased compensation for an already service-connected disability, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that he/she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment in order to substantiate the claim. Vazquez-Flores, 22 Vet. App. 37 (2008). VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Id. It is noted that, on September 4, 2009, the Federal Circuit vacated and remanded Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Specifically, the Federal Circuit concluded that "the notice described in 38 U.S.C. § 5103(a) need not be veteran specific." In addition, the Federal Circuit determined that "while a veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit held, "insofar as the notice described by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative diagnostic codes or potential 'daily life' evidence, we vacate the judgments." In this case, notice was sent to the Veteran in January 2006, prior to the initial adjudication of his claim, that informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also advised that should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. He was also advised on what evidence and/or information is necessary to establish entitlement to an effective date should benefits be granted. Id., see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the notice provided to the Veteran was compliant with the above requirements and, consequently, there is no prejudice to the Veteran in proceeding with adjudication of his claim. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence. The duty to assist includes providing the Veteran a thorough and contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran was afforded VA examinations in January 2010, September 2011 and June 2013. Significantly, the Board observes that he does not report that the condition has worsened since he was last examined, and thus a remand is not required solely due to the passage of time. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Furthermore, the reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis 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. Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2. It is also necessary to evaluate 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 evaluation to apply to the veteran's disability, the higher evaluation 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. While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim whenever 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). Service connection for the Veteran's right ankle disability was established in a February 1982 rating decision and was awarded a noncompensable disability rating effective November 21, 1981. The Veteran filed a claim January 7, 2010, for service connection for "post-traumatic arthritis, right ankle arthritis and injury." Since service connection was already established for such a disability, the RO correctly treated the Veteran's claim as one for an increased disability rating. In an April 2010 rating decision, the RO granted a 10 percent disability rating for the Veteran's right ankle disability under Diagnostic Code 5010, used to evaluated traumatic arthritis. Diagnostic Code 5010 refers the evaluator to rate traumatic arthritis as osteoarthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, however, arthritis is rated as 10 percent disabling when shown by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, or as 20 percent disabling when show by x-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. In a November 2011 rating decision, the RO granted a disability rating of 20 percent for the Veteran's right ankle disability using hyphenated code 5010-5271 effective September 12, 2011. The hyphenated code was intended to show that the Veteran's right ankle disability was manifested by traumatic arthritis (Diagnostic Code 5010) and limitation of motion (Diagnostic Code 5271). Limitation of motion of the ankle is evaluated using Diagnostic Codes 5270 and 5271. Under Diagnostic Code 5271, an ankle with moderate limited motion warrants a 10 percent evaluation. An ankle with marked limited motion warrants a maximum 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5271. In order to warrant the assignment of a 30 percent disability evaluation, there would have to be ankle ankylosis fixed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The medical evidence of record consists of VA treatment records and VA examination reports from January 2010, September 2011 and June 2013. VA treatment records show the Veteran was seen in February 2010 for an initial visit to the VA Medical Center in Dallas, Texas. At that time, he complained of ankle instability and pain with prolonged standing. The assessment was right ankle traumatic arthritis. The next treatment note relating to the Veteran's ankle in the claims file is from July 2011. This Ambulatory Care treatment note shows the Veteran's report of right ankle pain rated 5 out of 10 with an antalgic gait with a cane. Physical examination showed mild swelling medially, tenderness to palpation in the anterior and medial submalleolar area, and near complete range of motion with minimal discomfort. The assessment was right ankle pain status post surgery, negative X-ray. Plan was to obtain a magnetic resonance imaging (MRI) study, which was conducted in August 2011. The MRI study of the right ankle showed there was a partial tear of the anterior syndesmotic ligament; a complete tear of the proximal calcaneofibular ligament; a complete tear of the peroneus brevis tendon; peroneus longus tendinopathy; degeneration of the superomedial oblique calcaneonavicular ligament; osteochondral lesion of the medial talar dome and the middle of the talar articular surface at the posterior subtalar joint; osteoarthritis at both the tibiotalar and subtalar joints; and milder degenerative changes of the midfoot and talonavicular joint. In March 2012, the Veteran underwent a consultation with Podiatry. His history of right ankle injury in 1979 while playing basketball at for Bergstrom Air Force Base was noted including that he had a significant talar dome injury and had surgery three years later at Lackland Air Force Base. Examination demonstrated right ankle pain on inversion and dorsiflexion; positive anterior drawer sign at right ankle; crepitus on range of motion; neurovascular status was completely intact; and muscle strength was 5/5 at all pedal groups. The assessment was right lateral ankle instability with peroneal involvement. Plan was for the Veteran to have a browstrom with talar dome lesion procedure and peroneal tendon repair. He was placed on the waitlist for surgery. On September 28, 2012, the Veteran underwent surgery to repair the ligaments and tendons in his right ankle (browstrom procedure and peroneal tendon repair). On the day of surgery, the Veteran reported having pain in his ankle rated as 6 out of 10 that he described as aching and increased by exercise, movement, standing and walking and alleviated by rest. He related that the pain was always there and affected physical activity, walking, relationship with others, emotions and concentration. Post operative course was noted to be normal with the Veteran being compliant with nonweight-bearing as seen in follow up notes from October 5th through October 31st. On October 31, 2012, the cast on the Veteran's right ankle was removed and he was placed in a boot to be worn for two weeks. He was also allowed to start full weight bearing in the boot. On November 2, 2011, the Veteran underwent consultation for physical therapy for his right ankle status post surgery. The initial evaluation note indicates that he arrived wearing a CAM boot and walking without an assistive device. He reported his pain was 3 out of 10. Action range of motion of the right ankle was 10 degrees of dorsiflexion, 35 degrees of plantar flexion with pain, 8 degrees of ankle eversion with pain, and 16 degrees of ankle inversion. Palpation of the right foot showed tenderness along the second and third metatarsals. His walked with a limp due to his right foot being in a CAM boot. At his therapy appointment on November 7th, the Veteran reported pulling and discomfort/pain with range of motion and isometric home exercises, but denied swelling. Objectively, no pain was noted in the right ankle. It was noted that the Veteran came into the clinic with a cane but that was due to left knee pain and back pain. Physical therapy note of November 26th shows the Veteran had been taken out of the CAM boot and was allowed to wear tennis shoes. Podiatry follow up note dated December 12, 2012, showed the Veteran was performing strengthening exercises on his own. Examination showed no pain out of proportion. Eversion strength was 5/5 in the right ankle. The assessment was status post browstrom and peroneal longus and brevis tendon repair times three months with successful post operative course. He was in tennis shoes but was told he may transition to dress shoes if needed. Furthermore, it was noted that there was no need for organized physical therapy any longer as he was doing great at performing strengthening exercises on his own. In addition, VA examinations were conducted in January 2010, September 2011 and June 2013. On examination in January 2010, the Veteran reported the original injury to the right ankle in service in 1976 while playing basketball, which was first diagnosed as a strain but later was found to have been a fracture. He had surgery on the ankle in September 1979. He reported that he had not been able to run, jump walk far or stand long, and it was getting worse as time went on. The examiner noted the Veteran reported subjective symptoms of pain, swelling, instability, weakness, giving way and lack of endurance. Treatment consisted of Tylenol, two capsules as needed, which helped a little. He also reported flare-ups caused by long standing or walking (causing the ankle to swell), cold weather (causing increased pain), and carrying heavy items (sometimes increased pain). Severity of flare-ups was described as "very painful." Frequency was reported to be every winter or every time he had to be on his feet for long periods of time. He also reported that, when the ankle rolls, he has to wear a brace for 1 week to 10 days. Alleviating factors included rest and Tylenol. As for extent of impairment on daily activities, he stated that, since the accident, he has been extremely limited to what he can do. He reported he uses a cane and ankle brace to help with ambulation when the ankle gets sore as it would help him walk "point to point." He further reported he has suffered from recurrent subluxation/abnormal movement of the bone(s) in that, several times a year, the ankle will roll and he would have to put a brace on it then. On physical examination, the examiner noted that there was painful and limited range of motion. Range of motion of the right ankle was noted to be 0 to 10 degrees of dorsiflexion (normal 0 to 20 degrees) and 0 to 50 degrees of plantar flexion (normal 0 to 45 degrees). There was mild varus/valgus of the os calcis in relationship to the long axis of the tibia and fibula bilaterally. The examiner noted that there was pain, fatigue, weakness, and lack of endurance but no incoordination present on examination. The examiner further noted that there was objective evidence of painful motion, weakness, and tenderness but no edema, effusion, instability, redness, heat, abnormal movement or guarding of movement on examination. There was no additional limitation of motion after repetitive use. His gait was noted to be abnormal in that he walked with a limp and used a cane when he has to stand or walk for any length of time. He walked stiff-legged without throwing his legs forward. As to functional limitations, the examiner noted that the Veteran was very limited by pain, which was aggravated by walking, and that he has to use a cane even for standing. The diagnosis was traumatic arthritis, right ankle, with osteochondritis dissecans. The examiner stated that there was no instability of the right ankle noted on examination. As to the effect on the Veteran's usual occupation and daily activities, the examiner stated that it would have an effect on his walking and that he cannot do any physical activity. On VA examination in September 2011, the examiner diagnosed the Veteran to degenerative joint disease, internal derangement with laxity, and osteochondritis of the right ankle. Subjectively, the Veteran complained of continued pain in the right ankle rated 4 out of 10, with increased pain with weather changes. He also reported having swelling, giving way, frequent rolling of the ankle causing occasional falling, and clicking and popping that was painful. He denied locking, heat, and redness. Treatment included ibuprofen and Hydrocodone. He reported that standing was limited to three hours at most and he would have increased problems at the end of the day and/or the next day if he stood three hours. He also reported his walking was limited to an unknown distance. It was noted that he was unable to stand on his toes or heels. Flare-ups were reported to occur daily causing the Veteran to lay down (reported has couch/sofa in office so he can lay down at work). On physical examination, range of motion of the right ankle was 20 degrees of plantar flexion with only 10 degrees where objective evidence of painful motion began, and 5 degrees of dorsiflexion with no degree where objective evidence of painful motion began. After repetitive testing, there was no change in range of motion of the right ankle. The only contributing factor noted to cause functional loss, functional impairment and/or additional limitation of motion was pain on movement. There was tenderness to palpation of the right ankle. Muscle strength was noted to be normal. Joint stability was noted to be abnormal with laxity on anterior drawer test. No ankylosis or other condition of the right ankle was noted. The Veteran's history of arthroscopic surgery was noted with residuals of degenerative changes, laxity due to ligament disruption, residual scar and ankle pain. He was further noted to use a cane and brace regularly. As to the functional impact of the Veteran's right ankle disability on his ability to work, the examiner noted that the Veteran was self employed and takes frequent breaks due to ankle and low back conditions. The final VA examination was conducted in June 2013. Again the Veteran gave a history of injury in service playing basketball with surgery in 1979, which he stated his ankle did not heal from correctly. It was also noted that he had another surgical repair on the right ankle in September 2012. Subjectively, he currently complained of constant pain of the top and lateral part of the foot and ankle. He also stated that he has reduced sensation of the same areas since the surgery and cramping in the foot. He reported occasional popping/snapping of the ankle. He uses a cane to ambulate and a power wheelchair if he needs to walk more than 30 minutes. Treatment consisted of muscle relaxer and Hydrocodone. He further reported flare-ups impacting the function of the right ankle involving pain that occurred daily and lasted 15 to 60 minutes; however, he reported no changes in function. On physical examination, range of motion of the right ankle was 45 degrees or greater of plantar flexion where objective evidence of painful motion began, and 15 degrees of dorsiflexion where objective evidence of painful motion began. After repetitive use testing, plantar flexion was further limited to 40 degrees but dorsiflexion was increased to 20 degrees. The examiner further noted that the Veteran has functional loss attributable to his right ankle disability of less movement than normal and pain on movement, as well as pain causing significant limitation of functioning during flare-ups or when used repeatedly over a period of time. There was also pain on palpation of the right ankle. Muscle strength was normal. There was no laxity on anterior drawer test (as compared to the prior examination in September 2011 prior to the Veteran's surgery) or on talar tilt test. There was no ankylosis or any other conditions of the right ankle noted. The examiner also noted that the Veteran uses assistive devices for ambulation to include a wheelchair occasionally, a brace constantly and a cane constantly. Finally, as for the functional impact on the Veteran's ability to work, the examiner stated that his right ankle disability would limit him in lifting to 8 pounds 5 times a day, in walking at one time to 5 minutes, in walking during an 8 hour day to 2 hours, in standing to 30 minutes at one time and 3 hours in an 8 hour day, and in sitting for 2 hours at one time or 5 hours in an 8 hour day. Although the examiner reviewed X-rays, which did not show degenerative changes in the right ankle except for a small heel spur, she failed to review the prior MRI study from August 2011 that clearly showed degenerative changes in the right ankle. Thus, the examiner stated that the diagnosis of "right ankle strain" is a more accurate diagnosis and is a correction of the original service-connected diagnosis. In addition to the medical evidence, the Veteran submitted multiple lay statements from family members and coworkers who testified to the extent that his right ankle disability has limited his ability to function in that he cannot stand or walk for any length of time without it impacting his ankle (e.g., causing swelling and increased pain), he cannot lift or carry any heavy objects, he cannot perform most physical activities including sports, playing with his grandchildren, lifting and carrying his grandchildren, doing yard work and house repairs, carrying in groceries, setting up and tearing down booths at trade shows, etc. Furthermore, they relate that the Veteran limits the time that he spends with customers or at trade shows to limit how long he stands and/or walks in order to avoid aggravating his right ankle disability. There are also comments that the Veteran lies down during the day at work because of pain; however, it is unclear from the record whether this is solely due to the Veteran's ankle disability and not also his back disability. Finally, there are statements regarding the Veteran's ankle rolling and causing him additional pain and having to use a brace and a cane. After a careful review of the evidence of record, the Board finds that entitlement to a 20 percent disability rating, but no higher, is warranted for the entire appeal period for the right ankle disability. The Board notes that, prior to the September 2011 VA examination, the evidence fails to demonstrate that the Veteran has actual marked limitation of motion of the right ankle. The medical and lay evidence does, however, demonstrate severe functional limitations due to the right ankle disability in that the Veteran was very limited in standing and walking with evidence of pain, fatigue, weakness and lack of endurance on examination. In addition, there was some evidence of instability in that the Veteran reported that his ankle would roll a few times a year causing increased pain and him having to wear a brace until it healed. Also, the Board notes that the VA treatment records starting in July 2011 show the Veteran had instability of the right ankle due to torn ligaments and tendons, which appeared to further limit the functioning of the right ankle. Furthermore, the lay statements further demonstrate the limitations of functioning resulting from the Veteran's right ankle disability involving standing, walking, lifting and other physical activities. Furthermore, the Board questions the range of motion measurements given by the January 2010 VA examiner given that he clearly indicates the Veteran has limitation of motion but then indicates plantar flexion was 50 degrees, which is in excess of VA's normal 45 degrees indicating an excess of motion rather than a limitation of motion. Consequently, the Board will resolve reasonable doubt in favor of the Veteran and find that the evidence demonstrates a disability picture that is consistent with marked limitation of motion of the right ankle prior to September 12, 2011, especially given that the September 2011 VA examination does not show any increased limitations in functioning despite showing a significant decrease in the range of motion of the right ankle. The Board notes that the 20 percent disability rating allowed for the Veteran's right ankle disability is the maximum amount of disability compensation under Diagnostic Code 5271. The Board finds that a higher rating is not warranted because there is no suggestion in the record that the right ankle is ankylosed. Therefore, a 30 percent disability evaluation pursuant Diagnostic Code 5270 is not justified. Furthermore, the Board notes that, given the Veteran's surgery on September 28, 2012, consideration must be given to whether a temporary total rating for convalescence is warranted pursuant to 38 C.F.R. § 4.30. Temporary total evaluations based upon convalescence will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. In the present case, the Board finds that the Veteran's service-connected right ankle disability resulted in surgery necessitating at least one month of convalescence. The Board acknowledges that the VA treatment records do not contain a report of the outpatient release indicating the period of convalescence; however, the evidence demonstrates that the Veteran was instructed to be nonweight bearing on the right ankle after his surgery. His right ankle was initially placed in a splint (see October 5, 2012 Podiatry note) and then in a cast (see October 10, 2012 note). The cast was removed on October 31, 2012, at which time his right ankle was placed in a CAM boot and he was able to fully weight bear thereafter and was sent for physical therapy. The note of his initial physical therapy evaluation from November 2, 2012, indicates he arrived walking with the CAM boot without assistive devices. Based on this evidence, the Board resolves reasonable doubt that the Veteran's surgery conducted on September 28, 2012, necessitated at least on month of convalescence as the Veteran's right ankle was in a cast and he was ordered to be nonweight bearing until October 31, 2012. Consequently, the Board finds that a temporary total disability rating for convalescence is warranted from September 28, 2012 to October 31, 2012. As of November 1, 2012, a 20 percent disability rating is warranted for the Veteran's right ankle disability as the post surgical evidence shows the Veteran's post operative course was normal and his functioning at least returned to what it was prior to his surgery, if it did not improve. Finally, the Board must consider whether referral is warranted under 38 C.F.R. § 3.321(b) for consideration of an extraschedular disability rating. It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In the exceptional case, however, to accord justice, where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. § 3.321(b). The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. Id. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified 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." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. In other words, whether the disability picture presented in the record is adequately contemplated by the rating schedule. In doing so, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 a 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 rating. The Board finds that the first Thun element is not satisfied here. The Veteran's service-connected right ankle disability is manifested by signs and symptoms such as pain, swelling, weakness, giving way, fatigability, and limitation of motion that impairs his ability to stand and walk for long periods and to perform physical activities such as lifting in his work and everyday life. (See, e.g., May 2010 VA progress note and June 2011 statement in support of claim). These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the ankle provide disability ratings on the basis of limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270 and 5271 (providing ratings on the basis of ankylosis and limited motion). For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The Board acknowledges that the Veteran's right ankle disability was shown to involve instability of the ankle, which is not necessarily contemplated by the rating criteria based upon limitation of motion. The Board notes, however, that the evidence initially shows by the Veteran's own report that instances of instability occurred infrequently (two to three times a year). Clearly, the evidence from 2011 shows that the Veteran's instability increased and he was found to have torn ligaments and tendons of the right ankle for which he underwent surgical repair. These findings, however, have been used in evaluating the Veteran's right ankle disability as 20 percent disabling under the rating schedule as initial increase to that rating was granted based upon the September 2011 VA examination that first showed the Veteran had right ankle instability and related it as a residual to his in-service injury and subsequent surgery in 1979. Furthermore, the Board has awarded a temporary total disability rating for convalescence as a result of the September 28, 2012, surgery to repair the torn ligaments and tendons in the Veteran's right ankle. Consequently, although not specifically contemplated by the rating schedule, the Board notes that the Veteran's current disability rating for his right ankle disability does contemplate his instability of the right ankle. In short, therefore, the Board finds that there is nothing exceptional or unusual about the Veteran's right ankle disability because the rating criteria reasonably describe his disability level and symptomatology and all functional limitations, including any instability of the right ankle, has been contemplated in rating the Veteran's disability under the schedular criteria. Thun, 22 Vet. App. at 115. In conclusion, the Board finds that a disability rating of 20 percent, but no higher is warranted for the Veteran's right ankle disability prior to September 12, 2011, and that a temporary total rating for convalescence pursuant to 38 C.F.R. § 4.30 is warranted for the period of September 28, 2012, to October 31, 2012. To that extent, the Veteran's claim for an increased disability rating for his service-connected right ankle disability is warranted. The Board finds, however, that the preponderance of the evidence is against finding that a disability rating higher than 20 percent or that referral for consideration of an extraschedular disability rating is warranted. The Board has considered the doctrine of reasonable doubt in rendering the above decision. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for osteoarthritis of the left shoulder is granted. Entitlement to service connection for osteoarthritis of the lumbar spine is granted. Entitlement to a disability rating of 20 percent for service-connected right ankle disability is granted prior to September 12, 2011, subject to controlling regulations governing the payment of monetary benefits. Entitlement to a temporary total disability rating (100 percent) for convalescence is granted for the period of September 28, 2012, to October 31, 2012, subject to controlling regulations governing the payment of monetary benefits. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs