Citation Nr: 1340682 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 09-08 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 10 percent disabling for a left ankle disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to October 1991. He is the recipient of, among other things, the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in San Juan, Puerto Rico. Jurisdiction was retained by the RO located in Winston-Salem, North Carolina. A January 2013 Board decision denied the Veteran's claim. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). A February 2013 Court order granted a joint motion for partial remand by the parties, and this matter is now returned to the Board for further appellate review. In a November 2013 argument submitted by both the Veteran and his representative, the Veteran requested that a 20 percent rating be granted for his left ankle disability under Diagnostic Code 5271. See 38 C.F.R. § 4.71a (2013). Having found the reports of symptomatology made by the Veteran in his November 2013 statement to be credible, as explained in greater detail below, the Board finds that a 20 percent rating is warranted and will grant the Veteran's claim. The Board is cognizant of the Court's decision in AB v. Brown, 6 Vet. App. 35 (1993), in which the Court noted that "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded." At the same time, the Court in AB v. Brown explained that "the Court does not here hold that a claimant may never limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law." In this particular case, the Board finds that the Veteran clearly expressed his intent in his November 2013 argument to limit his appeal to entitlement to a 20 percent rating for his left ankle disability. In this regard, the Board emphasizes that the basis of the February 2013 joint motion for remand was the fact that the Veteran reported to the August 2010 VA examiner that he was unable to bend or twist his left ankle during flare-ups, but that the VA examiner did not address any additional functional loss during flare-ups, particularly in terms of limitation of motion. Then, in his November 2013 statement, the Veteran reiterated contentions made in the joint motion for remand, asserted that during flare-ups, he is unable to move his left ankle beyond "zero degrees" dorsiflexion and plantar flexion, and concluded that he was requesting a 20 percent rating under Diagnostic Code 5271 for "marked limitation of motion." The Board adds that the November 2013 statement was submitted with a cover letter by an authorized representative, an accredited attorney. In light of the above, the Board finds that the Veteran clearly intended to limit his appeal herein to consideration of a 20 percent rating, particularly in light of the Veteran's articulate discussion of the basis of the joint motion for remand, the rating criteria under Diagnostic Code 5271, and how his symptoms met those criteria in his statement. Thus, the Board's grant herein of a higher 20 percent rating for the entire period on appeal constitutes a full grant of the benefit sought on appeal. The Board also acknowledges that with the Veteran's November 2013 argument and cover letter from the authorized representative, a 90-day letter response form was attached in which the Veteran checked the box indicating that requested consideration by the agency of original jurisdiction (AOJ) of newly submitted evidence. See 38 C.F.R. § 20.1304 (2013). Because, having sympathetically considered the November 2013 statement, and the remainder of the evidence, the Board is granting the full benefit sought on appeal, the Board finds that a remand for AOJ consideration of that November 2013 statement is not required and would only serve to unreasonably delay a full grant of the benefit sought on appeal by the Veteran herein. The Board has considered, in the context of the Veteran's rating claim herein, whether a claim for a total disability rating based on individual unemployability (TDIU) has been raised by the Veteran or may otherwise be reasonably implied by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In this case, the Veteran has not asserted unemployability as a result of service-connected disability, and there is otherwise no implication of such unemployability in the evidence of record. Therefore, the issue has not been raised, and entitlement to a TDIU is not before the Board. FINDING OF FACT The Veteran's left ankle disability is manifested by symptoms of marked limitation of motion during flare-ups; neither ankylosis of the left ankle, nor malunion of the os calcis or astragalus, is shown. CONCLUSION OF LAW The criteria for an evaluation of 20 percent disabling for the Veteran's left ankle disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As explained in the introduction above, the Veteran's claim of entitlement to a 20 percent disability rating for his left ankle disability has been granted herein for the entire period on appeal. Therefore, as the full benefit sought on appeal is granted herein, no further notice or assistance is required, and any VCAA issues are moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board acknowledges that the basis of the parties' February 2013 joint motion for remand was that the January 2013 Bard decision provided inadequate reasons and bases as to whether the August 2010 VA examination report was adequate. The parties cited to the fact that the Veteran reported to the August 2010 VA examiner that during flare-ups, he was unable to bend or twist his left ankle, and that the VA examiner did not address whether the Veteran's left ankle disability flare-ups resulted in additional functional loss, including in terms of additional limitation of motion. As explained above, the full benefit sought on appeal is being granted herein, such that the adequacy of the August 2010 VA examination is now moot. Regardless, the Board notes that the import of the parties' contention in their joint motion was that the August 2010 VA examiner did not address whether the Veteran's left ankle disability flare-ups resulted in additional functional loss, including in terms of additional limitation of motion. The Veteran referenced this contention of the parties in his November 2013 argument, and then explained that during these flare-ups, he is unable to move the ankle and that it was the functional equivalent of zero degrees of dorsiflexion and plantar flexion. As the Board in this particular case finds this statement of the Veteran to be credible, the Board therefore finds that there is no further need to obtain clarification as to the additional functional loss during flare-ups, and to do so would only unreasonably delay a final grant of the full benefit sought on appeal. II. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3 (2013). Where service connection has already been established and an increase in the disability rating is in issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability in issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left ankle disability is currently assigned a 10 percent disability rating under Diagnostic Code 5271, effective May 15, 2006. See 38 C.F.R. § 4.71a (2013). The Veteran seeks a 20 percent rating. Diagnostic Code 5271 provides a 10 percent rating for moderate limitation of ankle motion, and a 20 percent rating for marked limitation of motion. Full range of ankle dorsiflexion is from zero to 20 degrees, and full range of ankle plantar flexion is from zero to 45 degrees. 38 C.F.R. § 4.71, plate II (2013). The Board observes that the words "mild," "moderate," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2013). A November 2006 VA examination report reflects that the Veteran reported experiencing left ankle weakness, stiffness, giving out resulting in falling, lack of endurance, popping, and constant pain. The Veteran stated that his condition did not result in incapacitation and that the pain was relieved by Motrin and that he could function with medication. Functional impairment was noted with standing and walking. Physical examination revealed that his posture was normal, his gait was normal, and he did not require an assistive device. His left ankle showed signs of tenderness but no deformity. Range of motion was noted as dorsiflexion to 10 degrees with pain (about half of normal), and plantar flexion to 45 degrees (normal). After repetitive use, pain was noted as having the most major functional impact, but no additional limitation of motion was noted after repetitive use, including due to fatigue, weakness, lack of endurance, or incoordination. An x-ray revealed an old post-traumatic deformity involving the tip of the lateral malleolus. A diagnosis of status post left ankle injury with residual pain and post-traumatic deformity, lateral medial malleolus, was recorded. The effect of the Veteran's condition on his occupational functioning was noted as pain with prolonged standing and walking. An August 2010 VA examination report reflects that the Veteran reported symptoms of weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, fatigability, tenderness, pain, and dislocation. He reported experiencing flare-ups as often as three times per week precipitated by physical activity during which he described an inability to turn or bend his left ankle. He also reported difficulty with standing and walking. He reported he was never hospitalized for the condition and that it had not resulted in any incapacitation in the past 12 months. He reported that his functional limitations involved walking and jogging. Physical examination of the ankle revealed edema and tenderness, but no instability, abnormal movement, effusion, weakness, deformity, guarding of movement, malalignment, or ankylosis. Ranges of motion were noted as dorsiflexion to 15 degrees and plantar flexion to 25 degrees, with no additional limitation of motion after repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. An x-ray revealed a one millimeter heel spur, no evidence of malunion to the os calcis, or malunion of the astralgus. A diagnosis of chronic left ankle sprain was recorded. Some laxity of the anterior talofibular ligament was noted with passive joint stress reproducing pain, but it was noted that the heel spur did not cause pain. The effect of the Veteran's condition on his occupational functioning was noted as pain with walking and standing, making his job as a restaurant manager difficult. The Board also acknowledges VA treatment records dated from 2005 to November 2011, although they do not reflect any symptoms more severe than those noted in the two VA examination reports discussed above. In a November 2013 statement in support of his claim, the Veteran reiterated his report to the August 2010 VA examiner that during flare-ups of severe pain due to his left ankle disability, he cannot turn or bend the ankle, such that range of dorsiflexion must be zero degrees, and plantar flexion must be limited to zero degrees. He also reported experiencing difficulty walking and standing during flare-ups. He argued that, accordingly, when taking into account his additional limitation of motion during flare-ups, he satisfies the 20 percent rating criteria for marked limitation of motion under Diagnostic Code 5271. He concluded his statement by requesting that the Board grant a 20 percent rating under Diagnostic Code 5271 for marked limitation of motion. In light of the above medical evidence of record, and having found the Veteran's reported symptomatology in his recent November 2013 statement to be credible, the Board finds that the preponderance of the evidence is favor of granting a 20 percent rating for marked limitation of motion of the Veteran's left ankle disability under Diagnostic Code 5271, which is the maximum schedular rating. As shown above, and having found the Veteran's reported symptomatology during flare-ups to be credible, range of dorsiflexion and plantar flexion during flare-ups is zero degrees, which symptoms during flare-ups constitute "marked" limitation of motion. While the Veteran has limited his claim on appeal to entitlement to a 20 percent rating for his left ankle disability (granted herein), the Board has considered whether entitlement to a higher rating has nevertheless been raised by the evidence of record. In that regard, the Board finds that the Veteran would not be entitled to a higher rating under any other diagnostic code. No ankylosis is shown, as the joint is not fixed in place, such that a rating under Diagnostic Codes 5270 is not warranted. Diagnostic Codes 5272, 5273, and 5274 provide maximum ratings of 20 percent, and separate ratings under these codes would constitute "compensating a claimant twice (or more) for the same symptomatology." See 38 C.F.R. § 4.14 (2013). With regard to whether the evidence of record has raised entitlement to a higher rating under 38 C.F.R. § 4.40 and 4.45, the Board notes that in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court held that if a claimant is already receiving the maximum schedular disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. See also DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). In summary, the Board finds that a 20 percent disability rating for the Veteran's left ankle disability under Diagnostic Code 5271 is warranted. The Board has considered whether an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate 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. With respect to the first prong of Thun, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's left ankle disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's left ankle disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, his main symptom is limitation of motion of his left ankle, and the present 20 percent rating addresses marked limitation of motion. As such, extraschedular rating is not appropriate. The Board has also considered whether staged ratings are necessary during the appeal period. However, based on the facts found, the Board finds that the 20 percent rating assigned for the Veteran's left ankle disability is appropriate for the entire period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In sum, the Board concludes that a 20 percent disability rating for the Veteran's left ankle disability is warranted for the entire period on appeal. ORDER Entitlement to an evaluation of 20 percent disabling for a left ankle disability is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ BETHANY BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs