Citation Nr: 1612633 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 11-28 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased rating for residuals of fracture of the right ankle to include right ankle strain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969 This matter comes before the Board of Veterans' Appeal (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied an increased rating for a right ankle disability. In January 2015, the Veteran testified before the undersigned via video conference from the RO. In March 2015, the Board remanded this case. FINDINGS OF FACT 1. Prior to May 23, 2013, the Veteran's right ankle disability caused no more than moderate limitation of motion and did not cause marked limitation of motion or marked functional impairment. 2. As of May 23, 2013, the Veteran's right ankle disability resulted in marked functional impairment, but no ankylosis. CONCLUSIONS OF LAW 1. Prior to May 23, 2013, the criteria for a rating in excess of 10 percent for right ankle disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.51, 4.71a, Part 4, Diagnostic Code 5271 (2015). 2. From May 23, 2013, the criteria for a 20 percent rating for right ankle disability are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.51, 4.71a, Part 4, Diagnostic Code 5271 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in a February 2010 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's VA records, and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, and provided rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was specifically examined to assess and then reassess the severity of this disability in question. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The records satisfy 38 C.F.R. § 3.326. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 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). Recently, the United States Court of Appeals for Veterans Claims (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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board further notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In June 2010, the Veteran was afforded a VA examination. The Veteran reported that he had weakness, stiffness, swelling, lack of endurance, locking, and pain. He indicated he did not experience heat, redness, giving way, fatigability, deformity, tenderness, drainage, effusion, subluxation, or dislocation. He related that he had flare-ups as often as 4 times per day and each time lasted for 3 hours. From 1 to 10 (10 being the worst), the severity level was at 6. The flare-ups were precipitated by physical activity and were alleviated by rest. During flare-ups, he experienced neither functional impairment nor any limitation of motion of the joint. He reported difficulty with standing/walking. The Veteran related that he had to use a walker and electric carts. The medication treatment was Tramadol, 2 tabs, 3 times a day. He stated his condition, in the past 12 months, had not resulted in any incapacitation. He had not had any joint replacement. He reported that he could not engage in prolonged walking without experiencing pain and stiffness. Physical examination revealed normal posture. The Veteran's abnormal gait was due to right ankle pain. He walked with a limp. In regards to a tandem gait, the Veteran walked with an unsteady gait due to right ankle pain. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities or any unusual shoe wear pattern. The right ankle was tender. For ambulation, he required a walker. The right ankle showed no signs of edema, instability, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. There was no subluxation. There was no ankylosis. The Veteran had dorsiflexion to 20 degrees and plantar flexion to 25 degrees, both with pain at that point. Repetitive motion yielded the same findings. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or information after repetitive use. The diagnosis was right ankle strain, status post right ankle fracture. The Veteran was unable to perform strenuous activities. There was no effect of the condition on the Veteran's usual occupation. The effect of the condition on daily activities was that the Veteran could not walk or stand for a long time. The Veteran was evaluated by VA on May 23, 2013. He ambulated with a right antalgic gait and reported right ankle pain. Pain was 6/10 on average, but could range to 10/10. The Veteran was taking Tramadol, but experienced no relief. He had been treated with cortisone injections, but they provided minimal relief. X-rays revealed moderate degenerative joint disease in the ankle and hindfoot as well as to a lesser degree in the forefoot; osteopenia; probable small ankle effusion; and there were a few tiny corticated osseous fragments at the tip of the medial malleolus. There was no definite acute abnormality. The Veteran ambulated with a rollator for community distances, but had to sit frequently due to the pain. He was unable to walk independently for long distances and was unable to walk in stores for shopping needs. The Veteran exhibited dorsiflexion of 15 degrees on the right. His plantarflexion was 25 degrees on the right. The Veteran's range of motion from the resting position was to 5 degrees in plantar flexion and in dorsiflexion. Inversion/supination was 3 degrees on the right and was unable to be moved on eversion/pronation. Strength was 2/5 in all planes. The intrinsic muscles were weak. The Veteran was unable to perform standing plantar flexion or dorsiflexion due to pain. He was also unable to position his right foot flat on level surface as the foot was fixed in a plantarflexed/supinated position and his primary weightbearing surface was on the lateral aspect/5th ray of right foot. In July 2013, the Veteran reported for an assessment, but was unable to walk and his right ankle could not be assessed. In June 2015, the Veteran was afforded another VA examination. The examiner indicated that the Veteran had osteoarthritis of the ankle. At that time, he reported having constant pain, that he could not stand for very long, and that he could not walk very far. He needed to use a walker. The pain was localized to the medial side of the joint. The Veteran was taking 6 tablets of Tramadol each day. He had not had surgery on the ankle. He had a cortisone injection 2 years ago. He did not report flare-ups of the ankle. The Veteran described his functional impairment in that he was almost immobile and he needed to use a walker. His range of motion was abnormal. He was able to dorsiflex to 5 degrees and to plantar flex to 35 degrees. He exhibited pain on moving the ankle. He also had pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. He had crepitus. He was able to perform repetitive use testing with at least three repetition with no changes. Pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was 5/5 on plantar flexion and 4/5 on dorsiflexion. There was a reduction in muscle strength. The Veteran did not have ankylosis or instability. The Veteran did not have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), and the Veteran had not had a talectomy (astragalectomy). Due to the Veteran's ankle condition, there was not functional impairment of an extremity such that there was no effective functions remaining other than that which would be equally well served by an amputation with prosthesis. X-rays revealed that multiple views of the foot and ankle demonstrated moderate degenerative joint disease of the tibiotalar, posterior subtalar, and talonavicular joints as well as in the tarsal joints. The x-rays were also consistent with the last set of x-rays, including for a small ankle effusion. It was noted that the Veteran was disabled because of his heart. He lasted worked in 2000. At that time he was a contractor. In 2009, his right ankle gave him problems resulting in a limp and he started to use a walker at that time. There was some progression of his condition. The Veteran's right ankle disorder is rated under Diagnostic Code 5271. Diagnostic Code 5271 evaluates the ankle disability based on limitation of motion. Moderate limitation of motion of the ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. Part 4, Code 5271. Normal range of motion in an ankle is considered to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. While the schedule of ratings does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. Further, Diagnostic Code 5284 assigns a 10 percent evaluation for a moderate foot injury; a 20 percent evaluation for a moderately severe foot injury; and a 30 percent evaluation for a severe foot injury. 38 C.F.R. § 4.71a, Diagnostic Code 5284. However, in this case, service connection has been specifically denied for a right foot disability; thus, a rating under this code is less appropriate than Diagnostic Code 5271. Diagnostic Code 5270 assigns a 20 percent evaluation for ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent evaluation is assigned for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between zero and 10 degrees. A 40 percent evaluation is assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with an abduction, adduction, inversion or eversion deformity. Diagnostic Code 5272 assigns a 10 percent evaluation for ankylosis of the subastragalar or tarsal joint in good weight-bearing position, and assigns a 20 percent evaluation for ankylosis of the subastragalar or tarsal joint in poor weight-bearing position. However, in this case, there is no ankylosis or deformity. Diagnostic Code 5273 assigns a 10 percent evaluation for malunion of the os calcis or astraglus with moderate deformity, and assigns a 20 percent evaluation with marked deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5273. Diagnostic Code 5274 assigns a 20 percent evaluation for astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Code 5274. The Veteran does not have these disabilities. As of May 23, 2013, the Board finds that a 20 percent rating, but no higher, is warranted. Prior to that time, even considering DeLuca criteria, the range of motion was too great for a higher rating. On both the May 2013 and June 2015 evaluations, the Veteran's movement on dorsiflexion reached only to 5 degrees (from the resting position on the May 2013 evaluation). While the criteria require less than 5 degrees of movement, there was pain and weakness on movement. In addition, and in affording the Veteran all reasonable doubt, the evidence shows a downward progression in mobility to the point that the Veteran's functional impairment has reached a marked level. Since there is no ankylosis, a higher rating is not assignable. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the preponderance of the evidence supports or is against the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against an increased rating prior to May 23, 2013, and the evidence supports a 20 percent rating as of that date. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional 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 C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's right ankle disability are not shown to cause any impairment that is not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe the disability symptomatology. There have not been any hospitalizations or marked interference with employment. The Veteran is unable to work due to heart impairment. The Board has considered the totality of the impact of all of the Veteran's symptoms on his ability to move and utilize the right ankle and rated him accordingly. Therefore, referral for consideration of an extraschedular rating is not warranted. ORDER Prior to May 23, 2013, an increased rating in excess of 10 percent for right ankle disability is denied. From May 23, 2013, a 20 percent rating for right ankle disability is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs