Citation Nr: 1340333 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-03 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating for a right ankle strain. ATTORNEY FOR THE BOARD J. All, Associate Counsel INTRODUCTION The Veteran had active military service in the United States Army from May 2004 to September 2009. Prior to this period of service, the Veteran attended the United States Military Academy at West Point from June 2000 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran was scheduled for a Board videoconference hearing in October 2012, but did not appear and did not indicate any desire to reschedule. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's right ankle strain has been characterized by subjective complaints of weakness, stiffness, instability, and pain. Objective evidence shows no limitation of motion, edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or ankylosis. Joint function is not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. CONCLUSION OF LAW The criteria for a compensable rating for a right ankle strain have not been met during the appeal period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, with respect to the increased initial evaluation claim on appeal, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In any event, VA's duty to notify has been satisfied. The Veteran acknowledged having been informed of what evidence was required to substantiate her claim, and of the Veteran's and VA's respective duties for obtaining evidence. See Pre-discharge/DES notice response, dated April 2009. The Veteran was afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond. The Board, therefore, finds that all notices required by the Veteran Claims Assistance Act (VCAA) and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. Additionally, the Veteran was provided a VA pre-discharge medical examination in August 2009. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds this examination adequate for the purpose of evaluating the Veteran's right ankle disability, as it involved a review of the Veteran's pertinent medical history, a clinical evaluation of the Veteran, to include range-of-motion and joint stability testing, and an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). More recently, the Veteran was scheduled for another VA examination to address her assertion that the August 2009 examiner "did not check for instability [in her] right ankle." See April 2010 notice of disagreement. The scheduled examination was necessary to decide the issue on appeal, but she failed to report to the examination and has not presented good cause for this failure. Therefore, the Board must decide the Veteran's claim based on the evidence currently of record. See 38 C.F.R. § 3.655; Turk v. Peake, 21 Vet. App. 565, 569 (2008). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Federal Circuit has held that while the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Increased Initial Evaluation Claims The Veteran contends that she is entitled to a compensable initial rating due to the severity of her service-connected right ankle strain. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.21(a), 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Court in Fenderson held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court also discussed the concept of the "staging" of ratings, finding that in such cases, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-127. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, assignment of separate ratings for separate and distinct symptomatology is not precluded where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). With regard to the evaluation of a service-connected disability involving a joint rated on limitation of motion, the Court has held that adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45 is required. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, or pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran's right ankle strain has been rated under the provisions of Diagnostic Code 5271 of VA's Rating Schedule. 38 C.F.R. § 4.71a. Diagnostic Code 5271 pertains to limitation of motion of the ankle. Moderate limitation of motion of the ankle is assigned a 10 percent disability rating. Marked limitation of motion of the ankle is assigned a 20 percent disability rating. That is the maximum rating available under Diagnostic Code 5271. Full range of motion of the ankle is from 0 degrees to 20 degrees dorsiflexion, and 0 degrees to 45 degrees in plantar flexion. 38 C.F.R. § 4.71, Plate II. Other diagnostic codes relating to the ankle are Diagnostic Code 5270 (ankylosis of ankle), Diagnostic Codes 5272 (ankylosis of subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). As noted below, these conditions are not shown on examination and application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. In August 2009, the Veteran was afforded a VA pre-discharge examination. At that time, the Veteran reported symptoms of weakness, stiffness, giving way, and pain, but denied experiencing swelling, heat, redness, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, or subluxation and dislocation. She also reported daily flare-ups lasting for about an hour. The flare-ups are precipitated by physical activity and are alleviated by rest and over-the-counter pain reliever. During these flare-ups she is unable to perform any sport due to the pain and stiffness. Upon examination, there were no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, or ankylosis. X-rays of the Veteran's right ankle revealed soft tissue swelling laterally. The Veteran was given a diagnosis of chronic right ankle strain. The examination report reflects that the Veteran exhibited full range of motion, with dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Based on that evidence, the Board concludes that the Veteran's ankle disability is not manifested by any limitation of joint motion, and is therefore noncompensable. The Board has considered the Veteran's reported symptoms of weakness, stiffness, giving way, and pain; however, physical examination of the Veteran's right ankle revealed her joint function was not limited by these or any other factors, including fatigability and incoordination. DeLuca, supra; 38 C.F.R. §§ 4.40, 4.45. The Veteran was scheduled for a VA examination in 2012 to determine the current status of the right ankle strain. She failed to report for that examination and any evidence expected from that examination which might have been material to the outcome of the decision is unavailable for review. The Board finds that the complaints of pain with absolutely no signs of deformity, weakness, lack of endurance, or other signs of pain with limitation of function, does not warrant a compensable evaluation. In sum, the preponderance of the evidence is against a finding that the Veteran's ankle disability has met the criteria for an initial compensable rating at any time during the appeal period. Therefore, the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, supra. The Board has considered whether staged ratings are warranted, but finds that they are not for application, as the evidence does not show that there were distinct periods of time where the disability was eligible for a compensable evaluation. 38 U.S.C.A. § 5110. Consideration also has been given to assigning a disability rating under another diagnostic code. However, there is no evidence of any form of right ankle ankylosis, malunion of os calcis or astragalus, or an astragalectomy. Therefore, a disability rating under a separate diagnostic code is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274. The Board has considered whether extraschedular consideration is warranted. 38 C.F.R. § 3.321(b); Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected ankle disability, as the competent medical evidence of record shows that her ankle disability is not manifested by any limitation of motion or functional loss. Therefore, the Board finds that the effects of the Veteran's disability have been fully considered and referral for an extraschedular rating is unnecessary. ORDER Entitlement to an initial compensable rating for a right ankle strain is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs