Citation Nr: 1618409 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 01-06 839A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating higher than 10 percent from May 16, 2000, to July 2, 2010, for residuals of a left ankle injury. 2. Entitlement to a disability rating higher than 20 percent since July 2, 2010, for residuals of a left ankle injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and Craig Bash, M.D. ATTORNEY FOR THE BOARD M. Caylor, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to December 1969. This case comes before the Board of Veterans' Appeals (Board) from a December 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In May 2009, the Board denied entitlement to a compensable rating prior to June 18, 2007; granted entitlement to a 10 percent rating higher from June 18, 2007, to April 29, 2008; and remanded the question regarding what rating was in order from April 30, 2008. An April 2010 rating decision implemented the Board's decision. The Veteran appealed the May 2009 denial of entitlement to a compensable disability rating prior to June 18, 2007, to the United States Court of Appeals for Veterans Claims (Court). In May 2011, the Court vacated the May 2009 decision on that one issue. In December 2011, the Board remanded the issue. Regarding the period from June 18, 2007, in a November 2010 rating decision VA assigned a 20 percent disability rating effective from July 2, 2010. In February 2011, the Board remanded the issues of entitlement to disability ratings higher than 10 percent from April 30, 2008, and higher than 20 percent as of July 2, 2010. A December 2014 VA rating decision addressed the claim following which it assigned a 10 percent disability rating from May 16, 2000, the date on which the Veteran's claim was initially received, to July 1, 2010; and denied entitlement to a disability rating higher than 20 percent since July 2, 2010. The issues on appeal have been recharacterized to reflect the change from three to two separate periods, and to better reflect the most probative medical evidence of record. The Veteran testified before a Decision Review Officer (DRO) in January 2002 at a VA RO as well as before the undersigned during June 2003 and April 2008 hearings at the Board's Central Office. Transcripts of the hearings are associated with the claims file. FINDINGS OF FACT 1. Prior to July 2, 2010, residuals of a left ankle injury resulted in a limitation of plantar flexion to at worst 35 degrees, and a limitation of dorsiflexion (extension) to at worst 15 degrees. 2. The Veteran's residuals of a left ankle injury resulted in limitation of plantar flexion to at worst 20 degrees and limitation of dorsiflexion to at worst 10 degrees as of July 2, 2010. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for residuals of left ankle injury prior to July 2, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5010, 5271 (2015). 2. The criteria for a disability rating higher than 20 percent for residuals of left ankle injury at any time since July 2, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5010, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. While VA failed to fully comply with the provisions of 38 U.S.C.A. § 5103 prior to the rating decision in question the record shows that any prejudice that failure caused was cured by the fact that VA notified the veteran in October 2001 correspondence and in a May 2001 statement of the case of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. These documents notified the Veteran of the rating criteria which would provide a basis for an increased rating. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and affording VA examinations. The left ankle claim was readjudicated in a September 2007 supplemental statement of the case. This document provided adequate notice of how effective dates are assigned. The claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and he was provided actual notice of the rating criteria used to evaluate the disorders at issue. The claimant was provided the opportunity to present pertinent evidence and testimony in light of the notice provided. Because the Veteran has actual notice of the rating criteria, and because the claim has been readjudicated no prejudice exists. There is not a scintilla of evidence of any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, neither the appellant nor his representative has suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. The Veteran has submitted several statements that are relevant and probative, and the record contains several reviews of clinical evidence in the claims file and additional examinations for other conditions that generated physical findings relevant to the Veteran's current appeal for a higher disability rating for residuals of left ankle injury. While the Veteran and Dr. Bash asserted that one VA examiner did not properly examine the appellant he is not prejudiced by the Board's consideration of the examination. As explained below, the Board has assigned the Veteran's most limited range of motion during each period to the entirety of that period. The claims have been properly developed. During the Veteran's February 2002 decision review officer hearing and June 2003 and April 2008 Board hearings, VA employees explained the issue on appeal and elicited relevant testimony from the appellant regarding the submission of evidence that may have been overlooked. Further, the undersigned left the claims file open for 30 days following the April 2008 hearing in order to allow the Veteran time to submit additional evidence. These actions provided an opportunity for the Veteran and his attorney to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2), consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board will therefore proceed to the merits of the claims. II. Analysis The Veteran contends that his left ankle symptoms are worse than the currently assigned ratings under Diagnostic Code 5271 reflect. The Veteran's residuals of a left ankle injury are rated based on limitation of motion of the ankle under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Diagnostic Code 5271 assigns a 10 percent rating for a moderate limited motion of the ankle and a 20 percent rating for a marked limited motion of the ankle. The terms "slight," "moderate," and "marked" are not defined in the Rating Schedule, but the Rating Schedule does show that for the ankle the normal range of plantar flexion is from 0 to 45 degrees and the normal range of dorsiflexion is from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II (2015). A review of the clinical evidence from prior to July 2, 2010, primarily consisting of VA treatment records, some private treatment records, and several VA examinations and addendum opinions, reveals a range of plantar flexion at worst from 0 to 35 and dorsiflexion at worst from 0 to 15 degrees prior to the July 2010 VA examination. In other words, the Veteran had a 10 degree decrease of plantar flexion and 5 degree loss of dorsiflexion. At worst, this limitation of motion qualifies as a moderate limitation of motion, and not a marked loss of motion. It is well to note that the Veteran at times had greater range of motion of the left ankle during this period; however, staged ratings are not necessary. The appellant, however, is competent to report intermittent flare-ups of aching pain with changes in weather that make it difficult for him to walk, being prone to exacerbation with increased activity, having to use ankle braces to avoid turning his ankle, and experiencing increased stiffness with sitting. His reports are credible, as they are largely internally consistent, and entitled to some weight. While there are no goniometer readings measuring the nature of any limitation of ankle motion during these periods of increased symptoms, his reports indicate that his residuals of left ankle disability more closely approximated moderate limited motion during the period beginning one year prior to his claim for an increased rating and ending July 1, 2010. The clinical evidence since July 2, 2010, consists primarily of VA treatment records and several VA examinations and addendum opinions. These records reveal a range of plantar flexion limited to at worst 20 degrees and a range of dorsiflexion limited to at worst 10 degrees. In other words, from the norm, the Veteran had a decrease of 25 degrees of plantar flexion and 10 degrees of dorsiflexion. This decrease qualifies as a marked limited motion. As was true with the period prior to July 2, 2010, the Veteran at times had a greater range of left ankle motion; however, staged ratings are not necessary. He is competent to report intermittent flare-ups of aching pain with changes in weather, pain after walking a mile or cutting the grass, swelling, stiffness, locking, perceived instability, and interference with weight-bearing and sitting. See December 2013 VA Ankle Examination; September 2013 VA Diabetes Examination; September 2010 VA Ankle Examination. His reports are credible, as they are internally consistent and consistent with contemporaneous medical findings of record. The VA examiners found that the Veteran had reduced range of ankle joint motion, which limited his gait, caused pain and swelling, led to him dragging his toe, and at times caused him to fall. The December 2013 VA ankle examiner specifically found the Veteran had functional loss of impairment including less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, disturbance of locomotion, interference with sitting, standing, and weight-bearing. While there are no goniometer measurements of the Veteran's limitation of range of motion during these periods of increased symptoms, his reports indicate that his residuals of left ankle disability more closely approximated moderate limited motion during the period beginning July 2, 2010. While the Veteran argued that he had additional functional impairment, a higher disability rating is not available under Diagnostic Code 5271. Other diagnostic codes were considered; however, the Veteran would not be entitled to a higher rating under a different applicable code. In this regard, any ankle arthritis, which currently is not service connected, would be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010. Those Codes in turn refer the rater to the Codes governing any limitation of ankle motion, i.e., Diagnostic Code 5271, the Code discussed above. There is no evidence that the appellant's left ankle is ankylosed thus precluding consideration of Diagnostic Code 5270, there is no evidence of subastragalar or tarsal joint ankylosis thus precluding consideration of 5272, and there is no evidence that the service connected injury involved a malunion of os calcis or astragalus, required at astragalectomy thus precluding consideration of Diagnostic Codes 5273 and 5274. Finally, the appellant is not service connected for a muscle injury involving the ankle thus precluding consideration of a rating under 38 C.F.R. § 4.73 (2015). The Veteran is competent to report his symptoms and functional limitations, and his reports of perceived weakness, giving way, and limitations on standing, sitting, and walking, and his reports are credible and entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). He is not, however, competent to provide a finding that he has ankle arthritis, that his ankle was ever ankylosed, or that his range of motion was limited to a specific degree or extent. These issues are medically complex, involving multiple systems in the body, and require specialized knowledge and experience with clinical measuring devices. See C.F.R. § 4.46 (2015); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). While Dr. Bash suggested that Diagnostic Code 5284, for other foot injuries, should apply to the Veteran's disability, the residuals of left ankle injury primarily produce increased pain and stiffness resulting in limitation of motion of the ankle, which Diagnostic Code 5271 specifically addresses. Moreover, a disability rating under Diagnostic Code 5284 would not be more favorable to the Veteran, as evidence in the claims file does not warrant a finding that there was moderately severe or severe disability of the foot that would warrant a disability rating higher than the 10 and 20 percent ratings currently assigned. The Veteran reported dragging his toe when his ankle locked and having to watch his feet to avoid tripping. Significantly, however, on physical examinations, his foot itself was non-tender and non-fluctuant and the Veteran did not report constant locking episodes. It is also well to note that no examiner found that the appellant's ankle ever locked on examination. While the Veteran consistently identified the area over the ankle joint as the source of his pain VA examiners related many of his symptoms to a twisting injury involving the collateral ligament region of the ankle. See November 2014 VA Addendum Opinion; August 2014 VA Addendum Opinion; December 2013 VA Addendum Opinion; September 2013 VA Diabetes Examination (normal sensory and motor examination of the bilateral feet). The record does contain competent, credible, and probative medical evidence that the Veteran was diagnosed with left ankle arthritis. The Board, however, gives more probative weight to the competent and credible medical imaging evidence of record and medical opinions with detailed rationales that indicate the Veteran has never had left ankle arthritis. See e.g. November 2014 VA Ankle Addendum Opinion (noting January 2002 private x-ray of left ankle was negative for fracture; noting that November 1992 initial physical therapy evaluation listing history of fractured left ankle is incorrect); August 2014 VA Ankle Opinion (cannot find evidence of any fracture of the left ankle, including any stress fracture on active duty; requesting that historical treatment records be corrected); December 2013 VA Ankle Examination (no abnormal imaging. In light of the foregoing the Board finds that the preponderance of the most probative evidence of record weighs against granting higher disability ratings for residuals of left ankle injury prior to and as of July 2, 2010. The Board has considered whether this case should be referred for consideration of extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (2015). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The evidence in this case does not show such an exceptional disability picture. Comparison between the Veteran's current symptoms and functional limitations with the criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology, as his primary symptoms are musculoskeletal-pain, stiffness, and weakness resulting in decreased range of motion and interference with walking, sitting, and climbing up and down stairs and requiring the use of an ankle brace. Diagnostic Code 5271 applies to musculoskeletal ankle disability-primarily, to limitation of motion or the normal movements of the joint. The symptoms and functional impairment caused by the Veteran's ankle disorder (i.e., pain, swelling, stiffness, locking, catching, giving way, antalgic gait, difficulty walking and standing, instability, swelling, weakness, the use of a brace) are adequately contemplated by, and indeed directly addressed by, sections 4.40, 4.45, and 4.59 of the regulations, as well as by the schedular criteria as discussed above. The record also does not show that any additional indicia of an exceptional or unusual disability picture exist, such as marked interference with employment or frequent periods of hospitalization. In June 2003 the Veteran testified that, while his residuals of left ankle injury required him to be more careful while working, they generally did not affect his ability to work. An August 2007 VA addendum opinion noted that the Veteran was voluntarily retired from all employment and did not necessarily need to work due to his success as an entrepreneur. While the Veteran reported in January 2008 that he desired to continue working but had been having difficulty finding a job, he attributed his difficulty primarily to his psychiatric symptoms. Finally, there is no indication that the average disability would be in excess of that contemplated by the assigned disability rating. As such, referral for consideration of extrascheduler rating is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 338-339 (1996); VAOPGCPREC 6-96 (Aug. 16, 1996); 61 Fed. Reg. 66,749 (1996). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extrascheduler 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. In this case, however, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected symptoms that have not been attributed to a specific service-connected condition. While imaging in the Veteran's claims file did show possible abnormal right ankle findings, the Veteran is not service connected for a right ankle disability. See February 2009, April 2009 VA X-Rays; January 2009 VA Bone Scan. Further, the Veteran is already service connected for both left and right lower extremity peripheral neuropathy related to his service-connected diabetes mellitus, type II. While the June 2015 VA diabetes examiner noted the Veteran had a separate neuropathy in the left lower extremity that was not related to his diabetes, the examiner noted it dated back to a 2013; however, no VA examinations from 2013 appeared to identify any clinical evidence of peripheral neuropathy. See September 2013 VA Diabetes Examination. Accordingly, this is not an exceptional circumstance in which extrascheduler consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. A claim for a total disability rating based on individual unemployability (TDIU) has not been raised by the record, the Veteran, or his representative. While the Veteran reported that he has difficulty with prolonged walking, sitting, and weight-bearing, has difficulty going up and down stairs, and occasionally trips due to dragging his left toes, he did not assert that he was unable to obtain or maintain a substantially gainful occupation due residuals of left ankle injury. As noted above, he reported that his residuals of left ankle injury generally did not affect his ability to work, several VA examiners found they did not affect his ability to work, and the Veteran told a VA examiner he retired voluntarily due to not needing to work financially. While the Veteran later asserted that he desired to work again post-divorce, he reported that he was having difficulty finding work due primarily to his psychiatric symptoms, not his residuals of left ankle injury. See June 2003 Transcript at 14; August 2007 VA Addendum; January 2008 Substantive Appeal. Accordingly, a claim of entitlement to a total rating based on unemployability due to residuals of left ankle injury has not been raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a disability rating higher than 10 percent from May 16, 2000, to July 2, 2010, for residuals of a left ankle injury is denied. Entitlement to a disability rating higher than 20 percent as of July 2, 2010, for residuals of a left ankle injury is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs