Citation Nr: 1453547 Decision Date: 12/04/14 Archive Date: 12/10/14 DOCKET NO. 09-00 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease status post right ankle surgery. 2. Entitlement to service connection for sleep apnea with CPAP. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The May 2008 decision granted the Veteran service connection and a noncompensable rating for the Veteran's right ankle disability. A September 2012 rating decision granted the Veteran an increased rating of 10 percent effective from June 6, 2011. In September 2013, the Board remanded the Veteran's right ankle increased rating claim. In a January 2014 rating decision, the RO awarded the Veteran an increased initial rating of 10 percent effective April 1, 2008, the day after the Veteran's discharge from service. Accordingly, the issue on appeal is now properly characterized as an entitlement to an initial rating in excess of 10 percent for degenerative joint disease status post right ankle surgery. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. The issue of entitlement to service connection for sleep apnea with CPAP is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's right ankle disability is manifested by no more than moderate limitation of motion, with pain and some instability. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for degenerative joint disease status post right ankle surgery have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5271 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The appeal arises from the Veteran's disagreement with the initial rating evaluation following the grant of service connection. The VCAA requires that the Secretary need only provide the Veteran with a generic notice after the initial claim for benefits has been filed and before the initial decision. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). No additional notice is required in the adjudication process because of the other forms of notice-such as notice contained in the rating decision and statement of the case (SOC) have already provided the claimant with the notice of law applicable to the specific claim on appeal. Wilson v. Mansfied, 506 F.3d 1055 (Fed. Cir. 2007). The Board further notes that an October 2008 letter from the RO advised the Veteran of the VCAA, including the types of evidence and/or information necessary to substantiate her claim and the relative duties upon herself and VA in developing her claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). As to the duty to assist, VA has associated with the claims folder the Veteran's service treatment records, VA treatment records, Social Security Administration (SSA) records, and private medical records. In compliance with the September 2013 and May 2014 Board remand decisions the Veteran's VA medical records were obtained and the Veteran was afforded a VA medical examination of the right ankle. The Board notes that the Veteran did not respond to the requests by VA for information and authorizations so that additional private treatment records could be requested on the Veteran's behalf. Additionally, the Veteran did not submit copies of any additional private medical records. Accordingly, the Veteran's claim will be decided based on the evidence currently of record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Law and Regulations Disabilities of the ankle are addressed under Diagnostic Code (DC) 5270 to DC 5274 of 38 C.F.R. § 4.71a (2014). Disorders such as ankylosis, joint malunion, and astragalectomy are addressed under DCs 5270, 5272, and 5274. As these disorders are not at issue here, these DCs will not be reviewed. The Veteran's ankle disorder is characterized by arthritis and limitation of motion. Her disorder, therefore, will be evaluated under DC 5271, which authorizes a 10 percent evaluation for moderate limitation of motion, and a 20 percent evaluation for marked limitation of motion. Of note, the Rating Schedule considers full range of motion of the ankle to be 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II. Under DC 5003, traumatic arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. 38 C.F.R. § 4.71a, DCs 5003, 5010 (2014). In this case the Veteran has a compensable rating based on limitation of motion. Consequently, DCs 5003 and 5010 are not for application. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. The Board notes that the terms "moderate" and "marked" in the criteria are not defined in the rating schedule. Therefore, rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. III. History On VA examination in November 2007, just prior to discharge from service, the Veteran reported constant stinging pain in the right ankle, at 7-8 out of 10 in severity. Pain was relieved by treatment with NSAIDs. She reported right ankle surgery in March 2007. She stated that she wore a right ankle brace and that the effect of the condition on her daily activities was that she could not run and that her ankle gives out easily. Range of motion of was reported as dorsiflexion normal, to 20 degrees, and plantar flexion normal, to 45 degrees. On her May 2008 notice of disagreement the Veteran reported that she wore a support on her right ankle at all times. A May 2008 letter from the Veteran's private physician who performed her right ankle surgery gives a history of the Veteran's right ankle disability prior to the surgery in 2007. The physician also noted that the Veteran had mild degenerative changes of the right ankle. The Veteran was afforded a VA examination in February 2009. The Veteran reported giving way and flare-ups of the right ankle every three to four months. She reported flare-ups lasted one or two days and that they resulted in no limitation of motion or other function impairment. Examination revealed 20 degrees of right ankle dorsiflexion and 45 degrees of right ankle plantar flexion. There was no additional limitation of motion with repetitive use. There was no right ankle instability. The examiner noted that there was no significant general occupational effect. A June 2011 VA examination report indicates that the Veteran had slight instability of the right ankle as compared to the left ankle. Examination revealed 5 degrees of right ankle dorsiflexion and 45 degrees of right ankle plantar flexion. There was no objective evidence of pain following repetitive motion and there was no additional limitation of motion after repetition. The examiner noted that the Veteran's right ankle condition would have significant occupational effects. She would have difficulty walking on rough ground and would have decreased mobility. It was noted that the Veteran was employed full time. A September 2011 VA treatment record notes that the Veteran stepped on a dog toy and rolled her right ankle. The Veteran had some swelling of the right ankle and the assessment was ankle sprain. On VA examination in July 2014, the Veteran reported persistent right ankle pain rated 6 out of 10, with complaints of rolling the ankle quite easily. She reported no current treatment and she reported no functional loss or impairment. The Veteran had right ankle plantar flexion to 45 degrees, and she had 15 degrees of dorsiflexion. There were subjective complaints of pain during range of motion measurements. The Veteran did not have any additional limitation of motion of the right ankle following repetitive use testing. There was no loss of motion due to any weakened movement, excess fatigability or incoordination. The examiner noted that the Veteran had no functional loss during flare-ups or when the joint was used repeatedly over a period of time. The Veteran had normal muscle strength and no muscle atrophy of the right ankle. There was no instability of the right ankle. The examiner noted that the Veteran was reportedly status post right ankle surgery, but he was unable to see any residual surgical scars. He noted that the Veteran was not using any assistive devices as a normal mode of locomotion. The examiner noted that the Veteran's right ankle disability did not impact her ability to perform any type of occupational task. He considered the Veteran to have mild limitation of motion of the right ankle. The diagnosis was right ankle degenerative joint disease status post right ankle surgery. IV. Analysis Applying the facts in this case to the criteria set forth above, the Board finds that a rating in excess of 10 percent for the Veteran's right ankle disability is not warranted. As noted above, the November 2007 and February 2009 VA examinations revealed full range of motion. The June 2011 and July 2014 VA examinations showed the Veteran to have full range of right ankle plantar flexion. The July 2014 VA examination showed that the Veteran's right ankle dorsiflexion was slightly limited to 15 degrees. Only the June 2011 VA examination showed the Veteran to have significant limitation of right ankle dorsiflexion. However, considering that the Veteran had full range of right ankle plantar flexion at that time, the Board does not consider that the Veteran's right ankle range of motion at that time was markedly limited. Furthermore, the July 2014 VA examiner specifically opined that the Veteran only had mild limitation of motion of the right ankle. The Board recognizes that the Veteran has reported pain on motion of the right ankle. However, none of the medical evidence indicates that the pain results in additional limitation of motion. Furthermore the February 2009, June 2011, and July 2014 VA examiners have noted that there was no additional limitation of motion with repetitive use. Also the July 2014 VA examiner stated that the Veteran had no functional loss during flare-ups or when the joint was used repeatedly over a period of time. Despite the Veteran's complaints of right ankle pain and the presence of degenerative arthritis, the record does not reflect that the Veteran has marked limitation of motion of the right ankle, even with consideration of DeLuca factors. In fact, only mild limitation is found overall, which is less than that contemplated by the 10 percent rating (for moderate disability). That said, the Veteran has noted that she has instability of the ankle, and there are documented instances of the ankle occasionally rolling in the record. The Board finds that this brings the level of disability to the moderate level, sufficient to warrant the 10 percent rating assigned. A rating in excess of 10 percent for limitation of the right ankle, however, is not warranted at any time during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). VI. Extraschedular Consideration Under 38 C.F.R § 3.321(b)(1) (2014), in exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities is made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. See 38 C.F.R § 3.321(b)(1). As noted above the Veteran is fully employed and has not indicated that her right ankle disability adversely impacts her job. Furthermore, the Schedule is not inadequate. The Schedule does provide for a higher rating for the service-connected right ankle disability, and the Veteran's symptoms of pain, limitation of motion, and instability are contemplated by the 10 percent assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, as discussed above, the schedular criteria for a higher rating have not been shown. As a final matter, the record indicates that the Veteran works full time and she has made no assertions that her right ankle disability affects her employability. Accordingly, the issue of a total disability rating based on individual unemployability (TDIU) has not been raised. See Rice v. Shinseki, App. 447 (2009). ORDER Entitlement to an initial rating in excess of 10 percent for degenerative joint disease status post right ankle surgery is denied. REMAND In May 2014, the RO issued a rating decision denying the Veteran's claim for service connection for sleep apnea with CPAP. In September 2014, the Veteran submitted a timely notice of disagreement regarding the denial of her claim for service connection for sleep apnea with CPAP. The Veteran has not been issued a statement of the case (SOC) on this matter. The current lack of a statement of the case regarding this claim is a procedural defect requiring remand. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide the Veteran a statement of the case that addresses the issue of entitlement to service connection for sleep apnea with CPAP. The Veteran and her representative should be provided notice of the Veteran's right to file a substantive appeal. This claim should be returned to the Board only if the Veteran perfects her appeal by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs