Citation Nr: 1603699	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  07-04 005	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to a schedular rating in excess of 20 percent for service-connected residuals of a fractured left ankle.

2. Entitlement to a rating in excess of 20 percent for service-connected residuals of a fractured left ankle on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Connor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1984 to July 1985.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

This case was most recently before the Board in March 2011 when it was remanded for additional development.  It has returned to the Board for adjudication.  Additional evidence was submitted after the most recent supplemental statement of the case, including updated medical records and an additional VA examination.  In a December 2015 statement, the Veteran, through his representative, waived RO review of this evidence.  Accordingly, the Board has reviewed the entire claims file in connection with this appeal. 

The issue of entitlement to an increased rating on an extraschedular basis 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 residuals of a fractured left ankle do not result in ankylosis or malunion of the tibia or fibula; and, he is in receipt of the maximum schedular rating for limited motion of the ankle.


CONCLUSION OF LAW

The criteria for a schedular disability rating in excess of 20 percent for Veteran's residuals of a fractured left ankle are not met during the entire period on appeal.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5262-5271 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2014) and 38 C.F.R. § 3.159 (2015).  In this case, VA provided adequate notice in letters sent to the Veteran in May 2005 and December 2009.  Although the notice pertaining to assignment of disability ratings postdated the initial unfavorable adjudication by the AOJ, the timing error is harmless error because after the notice was sent the AOJ readjudicated the claims in a January 2011 supplemental statement of the case.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service and VA treatment records are associated with the claims file, there is no indication of any additional treatment records relevant to the issues before the Board that are not of record.

The Veteran was also afforded VA examinations in September 2005, January 2010, November 2010, March 2011, December 2013, and April 2015.  To the extent that the 2010 examiners did not review the claims file, when the reports of those examinations is reviewed in conjunction with the reports of the December 2013 and April 2015 examinations, the Board finds that there is sufficient information to adjudicate the claim.  The examination reports show that the examiners considered all relevant evidence of record, including the Veteran's statements.  The Board finds that the VA examination reports are adequate for rating purposes because the examiners conducted clinical evaluations, interviewed the Veteran, and described the current severity of the Veteran's disabilities in sufficient detail so that the Board's evaluation is an informed determination.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

In the March 2011 Remand noted above, the Board directed the AOJ to schedule the Veteran for an examination to determine the current nature and extent of his left ankle disability.  The Board directed that the AOJ make the claims folder available to the examiner, the examiner conduct any testing deemed necessary, obtain a detailed clinical history from the Veteran, and note all pertinent pathology found on examination.  The Veteran was afforded an adequate VA examination in April 2015.  There has been substantial compliance with the Board's directives found in the March 2011 Remand.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).

There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.

II. Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  See 38 C.F.R. Part 4 (2015).  Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Rating Schedule, which is based, as far as practically can be determined, on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2014); 38 C.F.R. § 4.1 (2015).

Individual disabilities are assigned separate diagnostic codes.  38 C.F.R. § 4.27 (2015).  When a question arises as to which of two disability evaluations applies under a particular diagnostic code, 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 (2015).  In addition, consideration must be given to increased evaluations under other potentially applicable diagnostic codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2015).  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).

Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2015).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 4.3 (2015).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran is currently evaluated at the maximum schedular disability rating assignable for limited motion of the ankle.  See Diagnostic Code 5271.  A higher schedular evaluation for the ankle is only available for ankylosis of the ankle.  See Diagnostic Code (DC) 5270-5274.  Such has not been demonstrated.  Notwithstanding the fact that the Veteran has retained an active range of motion of his ankle throughout the appeal period, the record also includes specific findings in December 2013 and April 2015 that there was no ankylosis.  There is likewise no evidence that the Veteran experiences  ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astaragalectomy during this period.  Those diagnostic codes are not for application. 

A ratings in excess of 20 percent is also available under DC 5262 when there is a marked ankle disability, but only in cases where there is also malunion of the tibia or fibula.  The Veteran has not submitted and the evidence of record does not demonstrate objective evidence of malunion of the tibia or fibula in the present case.  To the contrary, the examinations from December 2013 and April 2015 specifically noted that there was no evidence of malunion.  Earlier X-rays were described as being essentially normal. Therefore, a rating in excess of 20 percent is also not warranted under DC 5262.  

The Board has also considered, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7   (1995).  However, the Veteran is already assigned the maximum schedular evaluation under Diagnostic Code 5271.  In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court of Appeals for Veterans Claims (Court) determined that if a claimant is already receiving the maximum disability rating available, it is not necessary to consider whether 38 C.F.R. § 4.40  and 4.45 are applicable.  Thus, the provisions of 38 C.F.R. §§ 4.40  and 4.45 and DeLuca, supra, are not applicable to the Veteran's current claim.  Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent.

Further, though surgical scars of the left ankle were noted on various examinations, said scars were not painful, unstable, or greater than 39 square centimeters in size.  The criteria for an additional, compensable rating for a left ankle scar have not been met.  See 38 C.F.R. § 4.118.  

There is also no schedular basis for a staged rating of the Veteran's left ankle disability as it remained relatively consistent throughout the appeal period (see Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007)), and the claim for a higher rating must be denied.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the assignment of a higher rating, that doctrine is not for application.  See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a schedular disability rating in excess of 20 percent for residuals of a fractured  left ankle is denied.





REMAND

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 20, 4.27.  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual appellant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  

In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  38 C.F.R. § 3.321(b)(1).

Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

The Veteran has reported and the medical evidence of record indicates that the Veteran has instability, weakness, and laxity of his left ankle.  Notably, during the March 2011 VA examination, the Veteran reported that his ankle would give way and lock, causing him to have deficient balance.  On examination, his ankle was tender with slight lateral and medial ligamentous laxity.  Additionally, the April 2015 VA examiner noted that the Veteran had a decrease in muscle strength and muscle atrophy.  These symptoms are not contemplated by the schedular rating criteria.  

Therefore, the Board finds that the claim should be referred to the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1).

Accordingly, the case is REMANDED for the following action:

1. Refer the Veteran's claim for an increased rating for residuals of a fractured left ankle to the Director of Compensation and Pension Service pursuant to the provisions of 38 C.F.R. § 3.321(b) for consideration of whether an extraschedular rating is warranted.

2. Thereafter, adjudicate the issue of entitlement to an increased rating for residuals of a fractured left ankle on an extraschedular basis.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto.

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 2014).


____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs