Citation Nr: 1527391 Decision Date: 06/26/15 Archive Date: 07/07/15 DOCKET NO. 14-00 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to initial compensable ratings for service-connected left and right ankle disabilities during the period from July 6, 2009 to June 12, 2011. 3. Entitlement to ratings higher than 10 percent for service-connected left and right ankle disabilities during the period from June 13, 2011 to April 3, 2014. 4. Entitlement to ratings higher than 20 percent for service-connected left and right ankle disabilities since April 4, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied service connection for sleep apnea and granted service connection for left and right ankle disabilities, assigning a noncompensable rating for each, effective July 6, 2009. In a September 2013 rating decision, the RO increased the left and right ankle disability ratings to 10 percent, effective June 13, 2011. In an April 2014 rating decision, the RO increased the left and right ankle disability ratings to 20 percent, effective April 4, 2014. Although the RO increased the Veteran's left and right ankle disability ratings during the pendency of the appeal, the Veteran is presumed to be seeking the maximum benefit available unless he expressly indicates otherwise. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). After the most recent rating decision increased the Veteran's left and right ankle disability ratings to 20 percent each, the Veteran replied in April 2014 that he acknowledged the increased ratings but was still not satisfied with the decision concerning service connection for sleep apnea. As the Veteran did not explicitly withdraw the increased rating claims, they remain on appeal; however, the Veteran did not identify any outstanding evidence pertinent to his bilateral ankle disabilities, nor did he discuss any additional symptoms or report any worsening of his current symptoms. Therefore, the increased rating claims are ready for adjudication. The Veteran's most recent (i.e. April 2014) VA examination report reflects that he continues to be employed, and he has not asserted that his service-connected disabilities render him unemployable. As such, a claim for a total disability rating based on individual unemployability (TDIU) has not been raised by the Veteran or by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The Veteran's sleep apnea had its onset in service. 2. During the period from July 6, 2009 to June 12, 2011, the Veteran's left and right ankle disabilities were manifested by joint pain and X-ray evidence documenting arthritis in both ankles. 3. During the period from June 13, 2011 to April 3, 2014, the Veteran's left and right ankle disabilities were manifested by aching pains bilaterally and marked decrease in all activities involving standing or walking; dorsiflexion was limited to 10 degrees and plantar flexion was limited to 30 degrees, with poor gait propulsion. 4. Since April 4, 2014, the Veteran's left and right ankle disabilities have been characterized by less movement than usual, weakened movement, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, and the need to use a cane. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2014). 2. During the period from July 6, 2009 to June 12, 2011, the criteria for initial disability ratings of 10 percent, but no higher, for left and right ankle disabilities have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003 (2014). 3. During the period from June 13, 2011 to April 3, 2014, the criteria for disability ratings of 20 percent, but no higher, for left and right ankle disabilities have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2014). 4. Since April 4, 2014, the criteria for disability ratings higher than 20 percent for left and right ankle disabilities have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). Regarding the issue of entitlement to service connection for sleep apnea, as the claim is herein granted in full, no discussion of VA's duties to notify and assist is necessary. As to the issues of entitlement to increased ratings for left and right ankle disabilities, the Board notes that the appeal arises from the Veteran's disagreement with the initial evaluations following the grant of service connection. Once service connection is granted, the claims are substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, the Veteran's VA treatment records have been obtained and considered. The Veteran has not identified any additional outstanding records that VA should seek to obtain on his behalf. The Veteran was provided with VA ankle examinations in December 2009, June 2011, and April 2014 that addressed the pertinent criteria for rating ankle disabilities. The examination reports are adequate because they describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Therefore, VA's duties to notify and assist have been met. Service Connection - Sleep Apnea Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for certain chronic diseases listed at 38 C.F.R. § 3.309(a), as well as for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board finds that the evidence supports an award of service connection for sleep apnea. The Veteran's VA treatment records reflect a current diagnosis of obstructive sleep apnea from January 2013. His service treatment records also show that he was diagnosed with sleep apnea in December 2004 while still on active duty. A history and diagnosis of sleep apnea is documented in at least six different service treatment records dated from December 2004 to June 2005, all while the Veteran was still in service. These records corroborate the Veteran's report that he was first diagnosed with this disorder when he stopped breathing during an operation on his right ankle, and had to be resuscitated. The Veteran's wife also reported that, at that time, the doctors determined that the Veteran had sleep apnea, and recommended that he undergo a detailed sleep study after his other ankle surgery. The Veteran and his wife are competent to report what the doctors told them. See Jandreau, 492 F.3d at 1376-77. Given that there is ample documentation in the Veteran's service treatment records demonstrating that he was assessed with sleep apnea during service, and given that the Veteran's and his wife's reports are corroborated by these records, the evidence demonstrates that the Veteran's diagnosed sleep apnea had its onset in service, and therefore service connection for sleep apnea is warranted. Increased Rating - General Principles Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. With an initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. See 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, 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. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Left and Right Ankle Disabilities Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected ankle disabilities. Diagnostic Codes 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the ankle. 38 C.F.R. § 4.71a, DCs 5003, 5010. DC 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two or more minor joint groups without exacerbations. 38 C.F.R. § 4.71a , DCs 5003, 5010 (2014). Under DC 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating. Ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the ankle in plantar flexion at more than 40 degrees; or in dorsiflexion at more than 10 degrees; or with abduction, adduction, inversion or eversion deformity warrants a 40 percent rating. Under DC 5271, moderate limited motion of the ankle warrants a 10 percent rating. Marked limited motion of the ankle warrants a 20 percent rating. Under DC 5272, ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent rating. Ankylosis of the subastragalar or tarsal joint in poor weight-bearing position warrants a 20 percent rating. Under DC 5273, a malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent rating. A malunion of the os calcis or astragalus with marked deformity warrants a 20 percent rating. Under DC 5274, an astragalectomy warrants a 20 percent rating. For rating purposes, normal range of motion in an ankle joint is plantar flexion to 45 degrees and dorsiflexion to 20 degrees. 38 C.F.R. § 4.71, Plate II. The ankle is considered a major joint. 38 C.F.R. § 4.45(f) (2014). Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. The criteria for rating scars were revised, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). As the Veteran's claim was filed in March 2012, the new criteria apply. Id. Under DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrant a 10 percent rating. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (2) provides that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. The RO has evaluated the Veteran's osteoarthritis of the right and left ankles with residuals scars as noncompensable from July 6, 2009 to June 12, 2011, as 10 percent disabling from June 13, 2011 to April 3, 2014, and as 20 percent disabling since April 4, 2014 under 38 C.F.R. § 4.71a, DC 5003-5271. The hyphenated code is intended to show that the Veteran's ankle disabilities include symptoms of degenerative arthritis (DC 5003) and limited motion of the ankle (DC 5271). In December 2009, the Veteran was afforded a VA ankle examination. The Veteran reported constant ankle pain, stiffness, and weakness, with the right ankle symptoms greater than the left ankle symptoms. The Veteran stated that he wore stave braces on his ankles. He denied popping, catching, giving way, locking, dislocation, or subluxation, but he described grinding in the ankles. The Veteran denied any recent falls. He stated that activities of daily living were slowed due to his ankle symptoms, but that he did not miss any duty during the past 12 months as a result of his ankle symptoms. The Veteran reported that standing was limited to 20 minutes and walking was limited to 15 minutes. He denied flare-ups, but described waxing and waning symptoms that were increased by standing or walking excessively. On physical examination, the examiner noted a one-centimeter gap between the Veteran's os calcis when he stood erect. Range of motion of the ankles was measured to be 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion, with no hint of instability on anterior, posterior, inversion or eversion stressed, and no crepitus. The examiner noted inversion of 30 degrees and eversion of 20 degrees bilaterally, with no hint of instability and no objective evidence of pain, spasm, or weakness. Repetitive testing provided no additional objective loss of joint function due to pain, weakness, fatigue or incoordination. The examiner noted painless scars on both ankles. He observed that the right ankle had an L-shaped scar that was 7 inches in length and, at the widest point, was 0.5 inches wide. On the left ankle, the examiner observed a scar that was 2 inches in length and, at the widest point, was 0.25 inches. The scars were not inflamed or painful, and did not impair function, with no keloid formation, edema or breakdown. Radiographs of the ankles reflected bilateral osteoarthritis with post traumatic changes. In June 2011, the Veteran was afforded a second VA ankle examination. The Veteran reported that his current job required him to go up and down ladders, kneel and stand up frequently, and work in tight quarters. He stated that his bilateral ankle pain made those activities difficult. The Veteran reported experiencing significant aching pains in both ankles, and a marked decrease in all activities involving standing or walking. He reported that he had been unable to run for a long time, and that currently he could walk up to two blocks if necessary, but would have considerable pain if he did so. He stated that he could stand no more than three to four minutes. He did not wear ankle braces, and he reported that both ankles were swollen by the end of the day. Physical examination revealed a non-antalgic gait with poor propulsion. The examiner observed that the right ankle was moderately edematous and significantly tender. He noted a 10-centimeter surgical scar in the posterior upper ankle that was linear, non-tender, superficial, and did not affect joint function. Range of motion testing revealed dorsiflexion from 0 to 10 degrees with pain beginning at 10 degrees, and plantar flexion from 0 to 30 degrees with pain beginning at 30 degrees. The examiner found that there was no additional loss of range of motion with repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. The examiner observed that the left ankle was moderately edematous, with significant tenderness. He noted a 5-centimeter surgical scar that was linear, non-tender, superficial, and did not affect joint function. Range of motion testing revealed dorsiflexion from 0 to 10 degrees with pain at 10 degrees, and plantar flexion from 0 to 30 degrees with pain at 30 degrees. The examiner found no additional loss of range of motion with repetitive use due to pain, fatigue, weakness, lack of endurance, or incoordination. The examiner concluded that the Veteran's left and right ankle disabilities had significant effects on standing and walking, and that the bilateral surgical scars had no functional significance. VA treatment notes reflect that the Veteran attended physical therapy for his ankles in July 2013 and August 2013. According to a March 2014 treatment note, the Veteran's VA physician encouraged him to follow through with a physical therapy plan for his ankles, and noted that the Veteran did not complete his previous course of physical therapy. The Veteran underwent a third VA ankle examination in April 2014. At that time, he reported swelling, cracking, popping, laxity, and looseness in both ankles. He described stiffness in cold weather, pain with inclines and uneven ground, limitation of motion, and stated that he could walk at most one to two blocks, and that the ankle pain was sharp and was aggravated by activity. The Veteran reported flare-ups, and he stated that when they occurred, he had to cease activity and rest, as well as use his cane. Range of motion testing for the right ankle revealed plantar flexion to 25 degrees with pain beginning at 25 degrees, and dorsiflexion to 0 degrees with pain beginning at 0 degrees. Range of motion testing for the left ankle revealed plantar flexion to 25 degrees with pain beginning at 25 degrees, and dorsiflexion to 0 degrees with pain beginning at 0 degrees. Repetitive use testing did not result in any additional functional loss in either ankle. The examiner noted that both ankles were characterized by less movement than usual , weakened movement, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Muscle-strength and joint-stability testing were normal, and no ankylosis was shown. The examiner noted that the scars on both ankles were not painful and/or unstable, and that the total area of all related scars was not greater than 39 square centimeters. During the period from July 6, 2009 to June 12, 2011, 10 percent ratings are warranted for the Veteran's left and right ankle disabilities under DC 5003. Radiographs taken at the time of the December 2009 VA examination demonstrated bilateral osteoarthritis with post traumatic changes. The ankle is considered a major joint under VA regulations, and both of the Veteran's ankles are service connected. Range of motion of the ankles was measured to be 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion, which reflects a full range of motion. See 38 C.F.R. § 4.71, Plate II. Thus, no limitation of motion was demonstrated on examination. However, under DC 5003, in the absence of limitation of motion, a 10 percent rating is nevertheless warranted where, as in this case, there is X-ray evidence of involvement of two or more major joints without exacerbation. A 20 percent rating under DC 5003 is not warranted unless occasional incapacitating episodes are shown. In this case, during the December 2009 VA examination, the Veteran denied flare-ups, and only described a waxing and waning of symptoms, which does not rise to the level of incapacitating episodes. Moreover, the Veteran reported that he had not lost any time from work during the past 12 months as a result of these disabilities. The Board has considered the other diagnostic codes to determine whether higher ratings would be available to the Veteran under an alternative code. In this case, ratings under DC 5270 or 5272 are not warranted because the evidence shows that the Veteran did not have ankylosis of the right or left ankles or of the subastragalar or tarsal joints during this period. While the December 2009 VA examiner observed a one-centimeter gap between the Veteran's os calsis when he stood erect, this corresponds to no more than a 10 percent rating under DC 5273 for a moderate deformity. To assign a separate rating under both DC 5003 and DC 5273 would constitute pyramiding, and is not allowed. See 38 C.F.R. § 4.14. Additionally, no evidence of an astragalectomy is of record, and therefore a rating under DC 5274 is not warranted. Separate ratings are also not warranted for the Veteran's ankle scars. Neither scar on the left or right ankle was shown to be painful and/or unstable, and the total area of all related scars was not greater than 39 square centimeters. Therefore, scar ratings under DCs 7802, 7802, and 7804 are not available. In summary, during the period from July 6, 2009 to June 12, 2011, 10 percent ratings for the left and right ankle disabilities are warranted under DC 5003, but the evidence preponderates against ratings higher than 10 percent. During the period from June 13, 2011 to April 3, 2014, the evidence warrants the assignment of 20 percent ratings for the left and right ankle disabilities. According to the June 2011 VA examination report, the Veteran reported aching pains in both ankles and marked decrease in all activities involving standing or walking. Range of motion testing revealed dorsiflexion from 0 to 10 degrees with pain beginning at 10 degrees, and plantar flexion from 0 to 30 degrees with pain beginning at 30 degrees. These findings reflect that the Veteran's ranges of motion for dorsiflexion had decreased by half since his last examination, and the ranges of motion for plantar flexion had decreased by one-third since the last examination. The examiner also noted that the Veteran had poor propulsion when walking. The June 2011 examination findings reflect significant functional loss and decrease in range of motion, and show that, as a result, the Veteran could only stand for three to four minutes and could not walk more than one or two blocks. Therefore, 20 percent ratings under DC 5271 for marked limitation of motion of both ankles are warranted. A 20 percent rating is the maximum available under DC 5271. The Board has considered the other diagnostic codes to determine whether higher ratings would be available to the Veteran under an alternative code. In this case, ratings under DC 5270 or 5272 are not warranted because the evidence shows that the Veteran did not have ankylosis of the right or left ankles or of the subastragalar or tarsal joints during this period. As no malunion of the os calcis or astragalus was shown during the June 2011 examination, ratings under DC 5273 are not available. Ratings higher than 20 percent under DC 5003 are not possible for two major joints. Additionally, no evidence of an astragalectomy is of record, and therefore a rating under DC 5274 is not warranted. Separate ratings are also not warranted for the Veteran's ankle scars. Neither scar on the left or right ankle was shown to be painful and/or unstable, and the total area of all related scars was not greater than 39 square centimeters. Therefore, scar ratings under DCs 7802, 7802, and 7804 are not available. In summary, during the period from June 13, 2011 to April 3, 2014, 20 percent ratings for the left and right ankle disabilities are warranted under DC 5271, but the evidence preponderates against ratings higher than 20 percent. During the period since April 4, 2014, the Veteran has already been in receipt of 20 percent ratings, and the evidence preponderates against higher ratings for his left and right ankle disabilities. The only diagnostic code pertaining to the ankles that would provide for ratings higher than 20 percent is DC 5270, and as no ankylosis was shown on examination in April 2014, DC 5270 is not applicable in this case. Separate ratings are also not warranted for the Veteran's ankle scars. Neither scar on the left or right ankle was shown to be painful and/or unstable, and the total area of all related scars was not greater than 39 square centimeters. Therefore, scar ratings under DCs 7802, 7802, and 7804 are not available in this case. In summary, during the period since April 4, 2014, the evidence preponderates against ratings higher than 20 percent for the left and right ankle disabilities. Extraschedular Consideration In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria explicitly contemplate the Veteran's left and right ankle disabilities. During the period from July 6, 2009 to June 12, 2011, the Veteran's left and right ankle disabilities were manifested by joint pain and X-ray evidence documenting arthritis in both ankles. Painful joints are specifically contemplated by DC 5003, which also addresses the Veteran's documented arthritis. During the period from June 13, 2011 to April 3, 2014, the Veteran's disabilities were manifested by aching pains in both ankles and marked decrease in all activities involving standing or walking, as well as dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees, with poor gait propulsion. DC 5271 contemplates the functional limitations demonstrated during this period of the appeal, and the rating criteria are categorized broadly into "moderate" and "marked" limitation of motion. DC 5271 also implicitly contemplates symptoms of pain. Since April 4, 2014, the right and left ankle disabilities have been characterized by less movement than usual , weakened movement, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing, and the need to use a cane. The broad categories under DC 5271 contemplate the functional limitations demonstrated during this period of the appeal, and DC 5271 also implicitly contemplates symptoms of pain. As such, during all periods on appeal, the rating criteria are adequate to evaluate the Veteran's left and right ankle disabilities, and referral for consideration of an extraschedular rating is not warranted. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Therefore, referral for extraschedular consideration under Johnson is not warranted. ORDER Service connection for sleep apnea is granted. Subject to the law and regulations governing payment of monetary benefits, during the period from July 6, 2009 to June 12, 2011, a rating of 10 percent, but no higher, for left ankle disability is granted. Subject to the law and regulations governing payment of monetary benefits, during the period from June 13, 2011 to April 3, 2014, a rating of 20 percent, but no higher, for left disability is granted. During the period since April 4, 2014, ratings higher than 20 percent for left ankle disability is denied. Subject to the law and regulations governing payment of monetary benefits, during the period from July 6, 2009 to June 12, 2011, a rating of 10 percent, but no higher, for right ankle disability is granted. Subject to the law and regulations governing payment of monetary benefits, during the period from June 13, 2011 to April 3, 2014, a rating of 20 percent, but no higher, for right disability is granted. During the period since April 4, 2014, a rating higher than 20 percent for right ankle disabilities are denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs