Citation Nr: 1340889	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  08-04 455	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for degenerative changes of the lower lumbar spine prior to September 25, 2010.

2.  Entitlement to a rating in excess of 20 percent for degenerative changes of the lower lumbar spine on and after September 25, 2010.

3.  Entitlement to a rating in excess of 10 percent for residuals of a right ankle injury prior to February 11, 2013.

4.  Entitlement to a rating in excess of 10 percent for residuals of a right ankle injury on and after February 11, 2013.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

E. Joyner, Counsel


INTRODUCTION

The Veteran served on active duty from October 1977 to October 1995.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied entitlement to the benefits sought on appeal.  

When the case was last before the Board in July 2013 it was remanded for additional development.

This appeal was processed using the VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issue of entitlement to an increased rating for service-connected tendonitis and degenerative joint disease of the left shoulder appears to have been raised by the record (in a September 2013 written statement from the Veteran), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 

The issues of entitlement to a rating in excess of 10 percent for degenerative changes of the lower lumbar spine prior to September 25, 2010, and entitlement to a rating in excess of 20 percent for degenerative changes of the lower lumbar spine on and after September 25, 2010, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.

FINDINGS OF FACT

1.  Prior to February 11, 2013, the Veteran's residuals of a right ankle injury are manifested by pain, productive of no more than moderate limitation of motion of the ankle.

2.  On and after February 11, 2013, residuals of a right ankle injury are manifested by pain, productive of marked limitation of motion of the ankle, without demonstration of functional impairment comparable to ankylosis, and no evidence of malunion of os calcis or astralagus, or astragalectomy.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent prior to February 11, 2013 for residuals of right ankle injury have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.27, 4.40, 4.41, 4.45, 4.71, 4.71a, Diagnostic Codes 5003, 5270-5274 (2013).

2.  The criteria for a 20 percent rating, but no higher, on and after February 11, 2013 for residuals of right ankle injury have been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.27, 4.40, 4.41, 4.45, 4.71, 4.71a, Diagnostic Codes 5003, 5270-5274 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). 


Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim.  As previously defined by the courts, those five elements include: (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.  Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded.  Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. 

In VA correspondence dated in December 2006, November 2007, May 2008, and October 2008, the Veteran was informed of what evidence was required to substantiate his increased rating claim, and of his and VA's respective duties for obtaining evidence.  Also, the December 2006 notice informed the Veteran of the criteria for consideration in assigning an effective date and/or disability rating. 

In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision.  Because VCAA notice (the December 2006 letter) in this case was completed before the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. 

In light of above, the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman.  The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. 

All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996).  The Board finds the VCAA notice requirements have been met in this case.

Duty to assist

With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA treatment records, VA examination reports, private treatment records, and the Veteran's statements in support of his claim.  The Board has carefully reviewed the Veteran's statements and concludes that there has been no identification of further available evidence not already of record.  The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a further duty to obtain.  In this regard, although the RO sent the Veteran a letter in October 2008 requesting that the Veteran complete the authorization and consent to release information forms so that any additional evidence could be obtained, the Veteran did not respond.

With respect to the VA examinations of record, the Veteran was afforded VA examinations with respect to his claim in May 2007, February 2010 and February 2013.  To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that together the VA examination reports are adequate.  All examination reports reflect that the examiners each conducted an examination, and together, the examination reports provide the medical information addressing the rating criteria in this case.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Consequently, the Board finds that the VA examinations are adequate. 

A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the Board is satisfied as to compliance with the instructions from its July 2013 remand.  Specifically, the July 2013 Board remand instructed the RO to obtain a copy of the February 2013 VA examination report and associate it with the claims file.  As the February 2013 examination report has been obtained and associated with the electronic claims file, the Board finds that the RO has complied with the remand directives.  Stegall v. West, 11 Vet. App. 268 (1998). 

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist in developing the facts pertinent to the claim.  Essentially, all available evidence that could substantiate the claim has been obtained.

Legal Analysis

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 (2013).

VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  Fenderson v. West, 12 Vet. App. 119 (1999); See Hart v. Mansfield, 21 Vet. App. 505 (2007).

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 (2013).  When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (2013).

The Veteran's statements describing the symptoms of his service-connected disorder are deemed competent evidence.  38 C.F.R. § 3.159(a)(2) (2013).  However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria.

The following paragraphs specifically apply to claims in which evaluating joint disabilities are rated on the basis of limitation of motion.  VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1 (2013). 

More recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). 

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim.

Historically, the Board notes that service connection for residuals, right ankle injury, postoperative, was granted in a February 1996 rating decision.  A noncompensable rating was assigned from November 1, 1995.  The Veteran perfected an appeal with regard to the noncompensable rating assigned.  In a June 1997 rating decision, the RO granted an increased rating of 10 percent, effective November 1, 1995.  In an April 1998 decision, the Board denied a rating in excess of 10 percent.  In an October 2000 rating decision, a 100 percent rating was assigned for the Veteran's right ankle disability based upon surgical or other treatment necessitating convalescence, from November 10, 1999 to December 31, 1999.  A 10 percent rating was assigned from January 1, 2000.  On May 31, 2005 the Veteran filed a claim for an increased rating for his service-connected right ankle disability.  In a January 2006 rating decision, the RO denied a rating in excess of 10 percent for the service-connected right ankle disability.  The Veteran did not appeal this decision; instead, he filed a new claim for an increased rating for his right ankle disability on October 12, 2006.  The October 12, 2006 claim cannot be construed as a notice of disagreement with the January 2006 rating decision as it does not in any way express disagreement with the January 2006 rating decision.  See 38 C.F.R. § 20.201.  As such, the rating period for consideration on appeal is from January 31, 2006, the day following notice of the January 2006 rating decision.  

Throughout the entire period on appeal, the Veteran's right ankle disability is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5271.  Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.

Diagnostic Code 5003, specifies that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013).  If the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  Id.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id.  For purposes of rating disability from arthritis, VA regulations consider major joints to be the shoulder, elbow, wrist, hip, knee and ankle.  38 C.F.R. § 4.45(f).

With regard to Diagnostic Code 5271, limitation of motion of the ankle, a 10 percent rating is warranted for moderate limitation of motion of the ankle, and a 20 percent rating is warranted for marked limitation of motion of the ankle. 

A May 2007 VA examination report reflects that the Veteran had full range of motion of the ankle.  The Veteran reported weekly flare-ups.  He indicated that his right ankle pain is a six on a scale from one to 10.  The Veteran complained of pain, weakness, stiffness, swelling, fatigability, and lack of endurance.  He did not complain of spasm, heat, inflammation, loss of function, or deformity.  He reported eight flare-ups a week lasting 10 minutes each.  It was noted that there was no functional impairment during a flare-up.  It was noted that the Veteran was employed and that his ankle disability does not interfere with his employment or ordinary activities.  On examination, range of motion was full, without pain or discomfort.  The examiner indicated that there were no signs of pain, fatigue, posturing, guarding, weakness, or lack of endurance.  There was no ankylosis, pain on repetitive motion, or instability.  X-rays revealed degenerative osteoarthritic changes.  It was noted that there was no change when compared to the October 2005 X-ray study.

A September 2008 VA treatment record indicates that the Veteran complained of chronic right ankle pain.  On examination, range of motion of all major joints was within normal limits.  It was noted that X-ray studies from July 2008 revealed mild degenerative changes, no significant change since previous X-ray studies in May 2007.

A November 2008 VA spine examination report notes that ankle dorsiflexion strength and plantar flexion strength were both full (5/5).  

A February 2010 VA examination report reflects that the Veteran underwent three previous surgeries for his ankle.  One surgery was in service, and the other two were in 1991 and 1999.  Plantar flexion was to 45 degrees.  Right ankle dorsiflexion was to 20 degrees.  There was no objective evidence of painful motion after three repetitions.  Ankylosis was not present.  The Veteran complained of giving way, instability, stiffness, and weakness.  There was no incoordination, decreased speed of joint motion, or deformity, effusions, locking, or inflammation.  The Veteran reported flare-ups every three to four months.  Flare-ups last one to two days and cause achy type pain.  The examiner indicated that the Veteran is employed full time as a senior management analyst, and that he had been employed in this position for 10 to 20 years.  It was noted that the Veteran had missed approximately 6 weeks of work due to ankle and knee surgeries.  The examiner stated that the right ankle disability prevents recreation, sports, and exercise.  It has a mild effect on chores, shopping, and driving.  It has no effect on traveling, feeding, bathing, dressing, toileting, and grooming.   

The February 2013 VA examination report indicates that the Veteran reported continuous pain in his right ankle.  The pain was described as a four or a five on a scale from one to 10.  The Veteran reported flare-ups twice a month that last about a week.  During a flare-up, he gets a sharp pain.  Crutches help.  On examination there was localized tenderness or pain on palpation of the ankle joint.  Range of motion testing revealed that plantar flexion was to 20 degrees.  Pain set in at 20 degrees.  Dorsiflexion (extension) was full, to 20 degrees.  Pain set in at 15 degrees.  After three repetitions, plantar flexion was to 20 degrees and dorsiflexion (extension) was to 20 degrees.  The examiner stated that there were no additional limitations after three repetitions.  The examiner stated that the Veteran has functional loss/functional impairment of the right ankle in terms of less movement than normal, weakened movement, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, or weight-bearing.  Strength testing revealed active movement against some resistance (4/5).  There was no laxity or ankylosis.  On talar tile test there was lateral right ankle pain, resulting in a tilting of the ankle inward.  The examiner indicated that the Veteran has antalgic gait and his shoes wear unevenly.  It was noted that the Veteran had previously had shin splints bilaterally, but that currently there were no shin splints.  The examiner also indicated that the Veteran does not have stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of os calcis or astralagus, or talectomy.  It was noted that the Veteran has a well-healed, linear, scar that is 3.5 cm due to ankle surgery.  The scar is painful but it is not unstable.  The examiner stated that the scar does not cause limitation of function.  The Veteran uses an ankle brace and crutches.  Imaging studies revealed early/minimal degenerative joint disease compared to previous X-ray studies in 2008.  The examiner stated that the Veteran's ankle is aggravated at work when he has to go up and down stairs.  He also experiences some swelling when he sits at his desk.  He uses ice and a TENS unit for his ankle.  

In order for a higher rating to be granted under Diagnostic Code 5271, it must be shown that the right ankle has marked limitation of motion.  In this regard, the medical evidence indicates that the Veteran's range of motion of the right ankle was full in May 2007, September 2008, and February 2010.  Moreover, despite the Veteran's complaints of pain, the VA examiners in May 2007 and February 2010 found no objective evidence of painful motion.  Further, there was no decrease in range of motion after three repetitions in February 2010 and there was no pain on repetitive motion in May 2007.  As such, a higher rating is not warranted under Diagnostic Code 5271 for the time period prior to February 11, 2013.

In concluding that the Veteran is not entitled to an increased rating for his service-connected right ankle disability for this time period, the Board has considered whether he has additional functional loss - over and beyond that objectively shown - due to his pain, or because of weakness, premature or excess fatigability, incoordination, etc. See DeLuca, 8 Vet. App. 202 (1995), citing 38 C.F.R. §§ 4.40, 4.45, and 4.59.  There has been no objective clinical indication, including at his VA compensation examination noted above, that his right ankle pain causes additional functional impairment above and beyond that objectively shown, even on repetitive use or during "flare-ups."  In this regard, the Board points out that repetitive use testing did not cause a decrease in range of motion at any examination during the time period prior to February 11, 2013.  Moreover, the May 2007 VA examiner specifically indicated that there were no signs of pain, fatigue, posturing, guarding, weakness, or lack of endurance.  The May 2007 VA examiner also indicated that there was no functional loss during flare-ups.  As a result, the currently assigned 10 percent rating based on moderate limitation of motion adequately compensates the Veteran for the extent of his pain, including insofar as it affects his range of motion.  38 C.F.R. §§ 5003, 5010 (2013).

For the appeal period prior to February 11, 2013, there was no demonstration of symptomatic post operative scars, or functional impairment due to scars.  As such, a separate compensable rating is not warranted for post operative right ankle scars prior to February 11, 2013.  38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (as in effect prior to, and from October 23, 2008).

At the February 11, 2013 VA examination, plantar flexion of the right ankle was limited to 20 degrees.  Moreover, the February 2013 examiner indicated that there was functional loss in terms of less movement than normal, weakened movement, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, or weight-bearing.  There was also some loss of strength at the February 2013 VA examination when compared with prior strength tests.  Based upon this information, the Board finds that a higher 20 percent rating is warranted under Diagnostic Code 5271 based upon marked limitation of motion of the right ankle because a worsening has clearly been demonstrated.  In this regard, the Veteran now complains of flare-ups which occur much more frequently and which last much longer, and the Veteran's range of motion and functional impairment was markedly limited compared to prior VA examinations.  As such, a higher 20 percent rating is warranted beginning on February 11, 2013.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  Importantly, 20 percent is the highest available rating under Diagnostic Code 5271.  

The Board has also considered whether a higher rating is warranted under any other diagnostic code for rating ankle disabilities at any point throughout the appeal period.  However, because there is no evidence of functional impairment comparable to ankylosis, including of the subastragalar or tarsal joint, and no evidence of malunion of os calcis or astragalus, or astragalectomy, a higher rating is not warranted under any other diagnostic code.  38 C.F.R. § 4.71a, Diagnostic Codes 5272, 5273, 5274.

The Board further notes that the Veteran is already in receipt of a separate compensable rating for his right ankle scar, effective from February 11, 2013.  Notably, in a February 2013 rating decision, the RO granted service connection for a residual scar associated with the Veteran's right ankle disability.  The Veteran has not appealed this decision.  As such, the issue involving the Veteran's right ankle scar is not currently before the Board.
 
In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his service-connected right ankle disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge; and as the Board finds that the Veteran's reports have been credible, his reports with respect to his symptomatology have been considered.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Although the Board acknowledges the Veteran's complaints, there is no competent medical evidence of record showing that the Veteran has met the rating criteria for a higher disability rating for the his right ankle disability, other than the increased rating of 20 percent as of February 11, 2013, which has been granted in this decision.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274.  The Board finds that the objective medical evidence of record is more persuasive with respect to whether the Veteran's service-connected right ankle disability warrants a higher disability rating in accordance with the schedular criteria, as the examining physicians performed physical examinations and reported the objective clinical findings with respect to the Veteran's right ankle disability.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  

In sum, a rating in excess of 10 percent is denied prior to February 11, 2013.  A 20 percent rating is granted as of February 11, 2013.  In rendering this decision, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to February 11, 2013.  Thus, the benefit of the doubt doctrine is not applicable and the claim is denied to this extent.  See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 

Extraschedular Consideration

Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1) (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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 evidence in this case does not show such an exceptional disability picture that the available schedular criteria are inadequate.  The rating criteria reasonably describe the Veteran's disability levels and symptomatology due to his service-connected right ankle disability.  As discussed above, there are higher ratings available under the applicable diagnostic codes, but the Veteran's right ankle disability is not productive of such manifestations.  Therefore, a further analysis under Thun is not warranted.  In any event, apart from the Veteran's ankle surgeries, the last of which occurred in 1999, prior to the time period on appeal, the Veteran has not alleged marked interference with employment due to his right ankle disability.  At the most, the evidence suggests that the Veteran has difficulty climbing stairs due to ankle pain and that his ankle swells while sitting at his desk for long periods of time.  The evidence does not suggest that these problems markedly interfere with the Veteran's employment.  Moreover, the Veteran does not allege and the medical records do not show that his right ankle disability has caused frequent hospitalizations.  In fact, he has not been hospitalized for his right ankle disability once during the period of the claim.  As such, referral for extraschedular consideration is not in order.

Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that his service-connected right ankle disability renders him totally unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.


ORDER

Entitlement to a rating in excess of 10 percent for right ankle disability for the time period prior to February 11, 2013 is denied.

Entitlement to a 20 percent rating for right ankle disability for the time period beginning February 11, 2013 is granted, subject to the criteria governing the payment of monetary benefits.


REMAND

In the July 2013 remand, the Board instructed the RO/AMC to afford the Veteran with a VA examination to determine the current nature and severity of his service-connected degenerative changes of the lower lumbar spine.  Specifically, the examiner was instructed to provide range of motion and repetitive motion findings in degrees for the thoracolumbar spine, state whether there is objective evidence of pain on range of motion and after repetitive motion testing, and if there is pain, provide the degrees at which pain begins and ends; state whether the lower spine exhibits weakened movement, excess fatigability, or incoordination in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995), and if so, provide the degrees of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination; provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lower spine is used repeatedly over a period of time, and if so, provide the degree of additional range of motion loss due to pain on use or during flare-ups; state whether the Veteran's service-connected lower spine disability is manifested by any neurological impairment, and if so, which nerves are involved, and the extent of the impairment; discuss whether the Veteran's lower spine disability is productive of any additional functional impairment; and state what impact, if any, the Veteran's lower spine disability has on his activities of daily living, including his ability to obtain and maintain employment.  38 C.F.R. § 4.10 (2013).

The Veteran underwent a VA examination in August 2013.  The examination report does not indicate whether the lower spine exhibits weakened movement, excess fatigability, or incoordination in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995).  The examination report also does not state whether the Veteran's service-connected lower spine disability is productive of any additional functional impairment, nor does it indicate what impact the Veteran's lower spine disability has on his ability to obtain and maintain employment.  

Therefore, the AOJ did not accomplish the objectives set forth in the July 2013 Board remand.  Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App 268 (1998).

In addition, the August 2013 VA examiner opined that despite the limited range of motion exhibited on examination, the examiner observed the Veteran before and after the examination taking off and putting on his socks and shoes.  The examiner indicated that the Veteran was able to bend his back much more during these activities than during the examination.  Based upon these observations, the examiner suggested that during these activities the Veteran flexed his back to at least 40 degrees.  In September 2013 the Veteran submitted a statement objecting to the examiner's characterization of the Veteran's actions and abilities at the examination.  Specifically, the examiner took issue with the fact that the examiner made certain conclusions about the Veteran without ever asking him if he was in pain.  The Veteran indicated that he was in severe pain and was sweating profusely during his putting on and taking off his shoes.

Under these circumstances, the Board finds that a remand is required for a new VA examination.

Deferral of Board adjudication of the issue of entitlement to a rating in excess of 10 percent for the service-connected lumbar spine disability, for the period prior to September 25, 2010, is being made to avoid piecemeal adjudication.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a new VA examination to determine the current nature and severity of his service-connected lower spine disability.  The claims file must be reviewed by the examiner, and the examination report must reflect that the claims file was reviewed.  The VA examiner must provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record.  Specifically, the VA examiner's opinion should address the following: 

a) Provide range of motion and repetitive motion findings in degrees for the thoracolumbar spine.  A goniometer should be used in conjunction with range of motion testing.

b) State whether there is objective evidence of pain on range of motion and after repetitive motion testing.  If so, provide the degrees at which pain begins and ends.

c) State whether the lower spine exhibits weakened movement, excess fatigability, or incoordination.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  If so, provide the degrees of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.

d) Provide an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lower spine is used repeatedly over a period of time.  If so, provide the degree of additional range of motion loss due to pain on use or during flare-ups. 

e) State whether the Veteran's service-connected lower spine disability is manifested by any neurological impairment, and if so, which nerves are involved, and the extent of the impairment. 

f) Discuss whether the Veteran's lower spine disability is productive of any additional functional impairment. 

g) State what impact, if any, the Veteran's lower spine disability has on his activities of daily living, including his ability to obtain and maintain employment.  38 C.F.R. § 4.10 (2013).

2.  The RO must notify the Veteran that it is his responsibility to report for the scheduled VA examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2013).  In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.  Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file

3.  After completing the above actions, the RO must readjudicate the Veteran's claims on appeal.  If any of the benefits sought remain denied, the RO must provide the Veteran and his representative with a supplemental statement of the case, and provide an opportunity to respond, before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs