Citation Nr: 1340305
Decision Date: 12/06/13	Archive Date: 01/17/14

DOCKET NO. 10-21 661	)       DATE DEC 06 2013

On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to an effective date prior to March 19, 2009, for the award of a 20 percent rating for left chronic ankle sprain with minimal localized degenerative joint disease (formerly left ankle condition).

REPRESENTATION 

Veteran represented by:      Disabled American Veterans

ATTORNEY FOR THE BOARD

J.N. Moats, Counsel

INTRODUCTION

The Veteran had active service from December 1976 to December 1982.

This matter comes to 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 St. Petersburg, Florida, which granted a 20 percent disability rating for the service-connected left ankle disability, effective March 19, 2009.

By way of background, the Veteran filed a claim for an increased rating for his service-connected left ankle disability that was received by VA on October 30, 2006. In a February 2007 rating decision, the RO continued a 10 percent disability rating for such disability. The Veteran submitted a notice of disagreement to the rating assigned in March 2007, the RO issued a statement of the case in September 2007, and the Veteran filed a substantive appeal in October 2007. In a July 2008 statement, the Veteran specifically requested a 20 percent rating. As noted above, in April 2009, the RO granted a 20 percent rating, effective March 19, 2009. That same month, in a written statement, the Veteran withdrew his appeal as to the increased rating claim indicating that he was satisfied with the current 20 percent rating assigned. Thus, as there remain no allegations of errors of fact or law for appellate consideration of this issue, this issue is no longer considered in appellate status. See 38 C.F.R. §20.204(2013).

Nevertheless, in October 2009, the Veteran submitted a notice of disagreement as to the propriety of the effective date assigned for the 20 percent rating in the April 2009 rating decision. A statement of the case was issued in May 2010 and the Veteran perfected his appeal that same month. As such, this matter is properly before the Board.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals that, with the exception of a November 2013 Appellant's Brief submitted by the Veteran's representative, the documents are

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either duplicative of records already in the claims file or not pertinent to the issue on appeal.

FINDINGS OF FACT

1. The Veteran filed a claim for an increased rating for left ankle disability that was received by VA on October 30, 2006.

2. Prior to March 19, 2009, the Veteran's service-connected left chronic ankle sprain with minimal localized degenerative joint disease was not productive of marked limitation of motion or ankylosis; as such, it was not factually ascertainable that the criteria for a 20 percent rating had been met.

CONCLUSION OF LAW

The criteria for an effective date prior to March 19, 2009, for the assignment of a 20 percent disability rating for left chronic ankle sprain with minimal localized degenerative joint disease have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §3.400(2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).
Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA

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will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).

In the instant case, the Board observes that the Veteran has appealed the propriety of the assigned effective date for the 20 percent rating assigned to his left ankle disability from the award of the increased rating. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for an increased rating for his service-connected left ankle disability was granted and an effective date was assigned in the April 2009 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned effective date for his 20 percent

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rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's post-service reports of VA treatment and private treatment, Social Security Administration (SSA) records, and VA examinations. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and testimony and concludes no available outstanding evidence has been identified. The Board has also 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.

Additionally, the Veteran was afforded VA examinations in January 2007 and March 2009 to evaluate the severity of his service-connected left ankle disability. The VA examinations are adequate because, as discussed below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff’d,

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Analysis

The Veteran is seeking an effective date prior to March 19, 2009, for the grant of a 20 percent rating for his service-connected left ankle disability. The Veteran essentially asserts that the effective date should be date of his claim for an increased rating filed on October 30, 2006.

The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The pertinent statute then goes on to specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997).

Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C.A. § 7105.

Applicable regulations provide that, if new and material evidence was received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might

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otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68   (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011).

Initially, the Board notes that the RO granted service connection for a left ankle condition in a March 2004 rating decision. The Veteran was informed of this decision in an April 2004 letter, but he did not file a notice of disagreement within one year with respect to the rating assigned. There is no indication in the record of any intent to file a claim for an increased disability evaluation for service-connected left ankle disability until he filed his current claim, which was received by VA on October 30, 2006.   Moreover, while VA treatment records during this period note a past medical history of chronic left ankle pain, they do not show an increase in severity of the left ankle disability. As such, these records cannot be considered new and material.

In sum, the Veteran did not submit a notice of disagreement within one year of notice of the March 2004 RO rating decision. Moreover, new and material evidence was not received within one year of this decision and, in turn, the provisions of 38 C.F.R. § 3.156(b) are not applicable. Accordingly, this decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013).

With consideration of the above analysis that the March 2004 rating decision is final, the first claim for an increase for left ankle disability was received on October 30, 2006. In fact, the claims file does not contain any additional submissions from the date of the April 2004 communication until the Veteran filed his current claim filed on October 30, 2006. Importantly, the Veteran has not asserted that he filed a claim prior to October 30, 2006.

In this regard, the Board has considered the provisions of 38 C.F.R. § 3.157(b), which state that, once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or

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hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen.

However, in the instant case, a report of examination or hospitalization by VA or uniformed services, evidence from a private physician or layman, or reports and records from State and other institutions were not received in the time period between the issuance of the March 2004 rating decision and the receipt of the October 2006 claim.

Therefore, the Board finds that the Veteran's claim for an increased rating for his left ankle disability was first received by VA on October 30, 2006. The general rule, as provided at 38 C.F.R. § 3.400(o)(l), is that the effective date of the award of an increased evaluation is the date of the Veteran's claim, October 30, 2006, or the date entitlement is shown, whichever is later. Accordingly, the focus of the Board's review becomes whether it is factually ascertainable that the Veteran experienced an increase in his service-connected residuals of left ankle disability during the year prior to the October 30, 2006 claim to the current March 19, 2009 effective date to warrant a higher rating. See Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997) (38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim (provided also that the claim is received within one year after the increase)). In making this determination, the Board will review the entirety of the evidence of record. See Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999).

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any

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changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991).

The Veteran's service-connected left ankle disability had been rated as 10 percent disabling by the RO under the provisions of Diagnostic Codes 5010- 5271. Diagnostic Code 5010 applies to traumatic arthritis and provides that such is evaluated based upon limitation of motion of the affected part, like degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. 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, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under Diagnostic Code 5271, which applies to limitation of motion of the ankle, a 10 percent rating is warranted when the ankle has moderate limitation of motion and a 20 percent rating is warranted when the ankle has marked limitation of motion. Full range of motion of the ankle is from zero to 20 degrees dorsiflexion and from zero to 40 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II.

The only other Diagnostic Code allowing for a higher evaluation for an ankle is Diagnostic Code 5270. This regulatory provision requires ankylosis of the ankle. A 30 percent rating is warranted with ankylosis between 30 degrees and 40 degrees in plantar flexion or between 0 degrees to 10 degrees in dorsiflexion. A 40 percent rating is warranted with ankylosis more than 40 degrees plantar flexion, more than 10 degrees dorsiflexion, or with abduction, adduction, inversion or eversion deformity. Ankylosis is defined as immobility and consolidation of a joint due to

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disease, injury, or surgical procedure. See Shipwash v. Brown, 8 Vet.App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91).

A January 2005 VA treatment record noted a past medical history of chronic left ankle pain. Follow up treatment records continued to show ankle pain, but do not provide any clinical findings for rating purposes. The Veteran was afforded a VA examination in January 2007. The claims file was reviewed. The Veteran reported left ankle pain and swelling. However, there was no swelling on examination. He denied weakness, stiffness, heat, redness, instability, giving way, locking, fatigability or lack of endurance. He also denied any flare-ups. He did not use assistive devices. There were no episodes of dislocation or recurrent subluxation. The joint problem did not affect the Veteran's usual occupation or his daily activities. On physical examination, dorsiflexion was to 10 degrees and plantar flexion was to 45 degrees. Inversion was to 30 degrees and eversion was to 20 degrees. There was no change following repetition. There was also no pain reported. The Veteran's gait and posture were normal. There was no joint ankylosis. There was no pain on motion, fatigue, weakness, lack of endurance, incoordination or instability. There was no additional limitation following repetitive use. There were also no functional limitations on standing or walking. There was no indication of abnormal weight bearing, effusion, or guarding of movement. A contemporaneous x-ray showed mild degenerative changes in the tarsal bones. There was no evidence of acute fracture of dislocation. There was a tiny rounded density in the posterior ankle that most likely represented an artifact but a small foreign body could not be excluded. The examiner found the x-rays of the left ankle to be normal. A diagnosis of history of ankle sprain with residual chronic left lateral pain syndrome was given.

Follow up VA treatment record showed that, in April 2007, the Veteran reported that his left ankle felt numb and uncomfortable until he took his medications. Another record in May 2007 observed that the Veteran was guarding the ankle joint on range of motion. The examiner observed that the Veteran was slightly tender on palpation and with end range of motion. Range of motion was limited, but no crepitation was present. The assessment was degenerative joint disease of the

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ankle. Follow up treatment records continued to document left ankle pain, but do not provide any further clinical findings.

Treatment records associated with the Veteran's SSA records do not address the severity of the Veteran's left ankle for rating purposes; but rather primarily pertain to other unrelated disorders.

The next evidence of record is a March 19, 2009 VA examination. At this examination, the Veteran reported that his ankle had become more painful, with increased stiffness since his last examination, impacting his ability to walk. Deformity of the left ankle was observed as well as weakness, stiffness and pain. Dorsiflexion was to 10 degrees and plantar flexion was now limited to 30 degrees. While there were no additional limitations following repetitions, objective evidence of pain was observed.

Based on the March 2009 VA examination findings, the RO increased the Veteran's disability rating to 20 percent, effective the date of the examination.

In his substantive appeal, the Veteran again asserted that a 20 percent rating should be awarded from the date of his claim on October 30, 2006. In support of his claim, he submitted an October 2010 handwritten statement from a private practitioner that indicated that the Veteran had been suffering from left ankle arthritis dating back to 2004.

The Board now turns to whether it was factually ascertainable that the Veteran's service-connected disability had increased in severity in the year prior to the date of claim at any point until the March 19, 2009 effective date. Based on the medical evidence of record, the Board finds that, prior to March 19, 2009, there was no probative evidence of marked limitation of motion of the ankle so as to warrant a 20 percent rating under Diagnostic Code 5271. Specifically, at the January 2007 VA examination, dorsiflexion was limited to 10 degrees, but plantar flexion, inversion and eversion were all normal. At its most restrictive, the Veteran's dorsiflexion was limited to half of what is considered normal range of motion. No other limitations were found. The Board views this as falling within the realm of overall moderate

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limitation of motion, not marked limitation of motion. The Board recognizes that an April 2007 VA treatment record observed limited motion, but it did not provide any specific findings. Moreover, the October 2010 private opinion also did not provide any specific findings for rating purposes. As such, neither of these documents show that it was factually ascertainable that the Veteran's left ankle disability had met the criteria for a 20 percent rating. Further, a higher rating was not warranted under Diagnostic Code 5270 as there is no clinical evidence demonstrating the presence of any ankylosis of the ankle.

Moreover, a higher compensation would not warranted under 38 C.F.R. §§ 4.40 and 4.45 because there was no persuasive evidence of additional functional loss due to pain, weakness, fatigue, or incoordination which would limit motion to such a degree to meet the criteria for a 20 percent rating. At the January 2007 VA examination, the examiner found no evidence of pain on motion or additional loss of function on repetitive motions. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43(2011

The Board also finds it significant that at the March 2009 VA examination, the Veteran reported an increase in severity since the last VA examination. In other words, the Veteran did not indicate that his symptomatology had been consistent since his date of claim. Moreover, this examination was the first objective evidence documenting restricted plantar flexion as well as objective evidence of pain on motion. In sum, the first evidence showing marked limitation of motion, the criteria for a 20 percent rating, was the March 19, 2009 VA examination.

The Board has also carefully reviewed and considered the Veteran's statements regarding the severity of his left ankle. In this regard, he is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). Nevertheless, the competent medical evidence offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay

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statements simply do not show that it was factually ascertainable that the criteria for a 20 percent rating were met prior to the March 19, 2009 effective date.

Therefore, absent any evidence beyond the Veteran's general assertion that his left ankle disability met the criteria prior to March 2009, the Board finds that it was not factually ascertainable that his service-connected disability had increased in severity prior to March 19, 2009, so as to warrant a 20 percent rating under the applicable rating criteria.

In conclusion, based on the analysis above, an effective date prior to March 19, 2009, for a 20 percent disability rating for service-connected left chronic ankle sprain with minimal localized degenerative joint disease, is not warranted. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

ORDER

An effective date prior to March 19, 2009, for the award of a 20 percent rating for left chronic ankle sprain with minimal localized degenerative joint disease is denied.

A. JAEGER	
Veterans Law Judge, Board of Veterans' Appeals

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