Citation Nr: 1621282 Decision Date: 05/26/16 Archive Date: 06/08/16 DOCKET NO. 10-26 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to a rating in excess of 10 percent for osteoarthritis of the right ankle. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Stuart Sparker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2002 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified at a hearing before the undersigned in May 2012. A transcript is of record. The Board remanded this case in March 2013. It now returns for appellate review. FINDING OF FACT As of May 6, 2013, the Veteran's right ankle osteoarthritis has been manifested by marked limitation of motion. CONCLUSION OF LAW As of May 6, 2013, the criteria for a 20 percent rating for right ankle osteoarthritis have been satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 3.321, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5271 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2015). A February 2009 letter notified the Veteran of VA's general criteria for rating service-connected disabilities, provided examples of the types of evidence that could support entitlement to a higher rating, and also provided notice of the Veteran's and VA's respective responsibilities for obtaining relevant records and other evidence. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The letter was followed by adequate time for the Veteran to submit information and evidence before initial adjudication or readjudication of this claim. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007) (VCAA notice must generally be provided prior to the initial rating decision); but see Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (a timing delay in VCAA notice is harmless if followed by readjudication of the claim after the claimant has had an appropriate time to respond); accord Prickett v. Nicholson, 20 Vet. App. 370 (2006). Accordingly, the duty to notify is satisfied. Concerning the duty to assist, the Veteran's service treatment records and VA treatment records have been associated with the claims file. See 38 C.F.R. § 3.159(c). He indicated at his May 2012 hearing that he received treatment for his right ankle condition from a private medical provider. In April 2013, VA sent the Veteran a letter seeking authorization to obtain the records from the private medical provider(s). The Veteran did not respond. Therefore, the duty to assist has been satisfied and appellate review will continue based on the record. Additionally, VA examinations were performed in March 2009, June 2011, and May 2013 that include consideration of the Veteran's medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2015). There is no evidence indicating that there has been a material change in the severity of the Veteran's right ankle condition since the last examination. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). Thus, further examination is not warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (holding that a new VA examination is not required simply because of the passage of time since an otherwise adequate examination was conducted); accord VAOPGCPREC 11-95 (April 7, 1995). Accordingly, the duty to assist is satisfied. In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). II. Increased Rating Analysis The Veteran asserts that a rating greater than 10 percent is warranted for his service-connected right ankle condition. For the following reasons, the Board finds that entitlement to a 20 percent rating is established as of May 6, 2013, but not earlier. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2015). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2015). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14 (2015). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred. See Hart, 21 Vet. App. at 509 (noting that "the relevant temporal focus" is on "the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim"); Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hazan v. Gober, 10 Vet. App. 511, 519 (1992); 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015). The Board has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board must assess the credibility and weight of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2015); see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2015). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the provisions of 4.40 and 4.45 are not subsumed by the DC's applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. § 4.59 (2015). Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Id.; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis). The Veteran's right ankle disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5003-5271. Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Id. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. Id. In application of Diagnostic Code 5003, "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. The rating criteria for limitation of motion for the ankle is found under 38 C.F.R. § 4.71a, DC 5271. Under this DC, a 10-percent rating is assigned for moderate limitation of motion of the ankle. Id. A 20-percent rating is assigned for marked limitation of motion. Id. Normal range of motion of the ankle is defined as 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran's right ankle disorder has met the criteria for a 20-percent rating, as of May 6, 2013. A May 2013 VA examination noted right ankle range of motion to 35 degrees of plantar flexion with pain at 25 degrees, and dorsiflexion to 10 degrees with pain at 10 degrees. The same range of motion was measured upon repetitive use testing without any additional functional loss. The examiner noted some functional loss of the right ankle including less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and weight bearing. There was localized tenderness or pain on palpation of the joint on the right side. No laxity or ankylosis was noted. The Veteran reported regularly using a brace on his right ankle for support. As the right ankle dorsiflexion range of motion was half of the normal range of motion, the Board finds that the Veteran has marked limited range of motion in his right ankle. Because the Veteran's right ankle disability has been assigned the maximum rating based on limitation of motion as of May 6, 2013, the issue of whether a higher rating is warranted based on functional impairment is moot. See Johnston, 10 Vet. App. at 85; see also DeLuca, 8 Vet. App. at 206-07; 38 C.F.R. §§ 4.40, 4.45. The Veteran's right ankle condition does not warrant a rating in excess of 10 percent prior to May 6, 2013. An April 2012 letter from a private medical provider noted that the Veteran had right ankle pain and an avulsion fragment in his right ankle on examination in March 2012. No range of motion findings were reported. Efforts were undertaken to obtain the Veteran's private treatment records; however, he not provide a release allowing VA to obtain his records from his private medical care providers, including M.E. and P.M., or submit those records to VA. See Board remand, dated March 2013 and Letter from the AMC to the Veteran, dated April 16, 2013. The duty-to-assist is not a one-way street. VA examinations conducted in March 2009 and June 2011 noted normal plantar flexion (i.e., 0 to 45 degrees) and dorsiflexion (i.e., 0 to 20 degrees) of the Veteran's right ankle, including on repetitive testing, with no associated pain, fatigue, or lack of endurance. The Veteran had a good gait, good strength, and no limp, swelling, or instability. The examiner(s) considered it a normal examination of a right ankle. In short, the Veteran had full range of motion of his right ankle prior to May 6, 2013. Therefore, the evidence does not support a finding of marked limitation of motion, and a rating in excess of 10 percent is not warranted. A higher rating is also not warranted based on the Veteran's reported pain, stiffness, and weakness, especially after an extended amount of time on his feet, as there is no evidence that these manifestations are productive of disability beyond the 10 percent rating already assigned for moderate limitation of motion. Indeed, the Veteran's ranges of motion remained normal even after repetitive testing on VA examinations in March 2009 and June 2011. Thus, a higher rating is not warranted under sections 4.40, 4.45 and 4.59 of the regulations, prior to May 6, 2013. See DeLuca, 8 Vet. App. at 206-07; Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (observing that pain 'must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss' warranting a higher rating). The Veteran had no limitation of motion of his right ankle, and the 10 percent rating was assigned based upon pain. See 38 C.F.R. § 4.59. The Board finds that a higher or separate evaluation is not warranted under any other diagnostic code pertaining to the ankle. In this regard, there is no evidence of ankylosis of the ankle or ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy. Accordingly, DC's 5270, 5272, 5273, and 5274, which compensate for these conditions, respectively, do not apply. See 38 C.F.R. § 4.71a. As there is no evidence or assertion of unemployability due to the Veteran's right ankle disability alone during the pendency of this appeal, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised. See 38 C.F.R. §§ 3.340, 4.16; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Referral of the Veteran's right ankle disability for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). A comparison of his symptoms and resulting functional impairment with the schedular criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Specifically, the credible evidence shows that the Veteran's right ankle disability is manifested by pain, limitation of motion (as of May 6, 2013), stiffness, and weakness. These manifestations are contemplated by DCs 5003, which pertains to arthritis, and DC 5271, which pertains to limited motion of the ankle. See 38 C.F.R. § 4.71a. Sections 4.40, 4.45, and 4.59 of the regulations also contemplate pain, weakness, instability, fatigability, and incoordination of the joint. Moreover, the fact that a particular symptom may not be mentioned in the criteria does not in itself warrant extraschedular referral. For example, no symptoms are described in DC 5271 which, contrary to suggesting that they are not contemplated by the rating criteria, rather indicates that the presence of one or more such symptoms is assumed, and that the evaluation is based on their disabling effects or the objective manifestations of the disability, according to the rating criteria set forth in the schedule. Indeed, the schedular criteria are generally designed not to compensate for specific symptoms, but instead for the average impairment in earning capacity due to disability resulting from such symptoms. See 38 C.F.R. § 4.1. Similarly, although specific examples of functional impairment in the context of work and daily activities may not be mentioned in the criteria, the criteria are necessarily designed with a view toward compensating for such impairment. See 38 C.F.R. § 4.10 (providing that the basis of disability evaluations is the ability of the body as a whole, or of the psych, or of a system or organ of the body, to function under the ordinary conditions of daily life including employment; see also 38 C.F.R. § 4.21 (2013) (providing that in applying the rating schedule, it is not expected that all cases will show all the findings specified in the criteria, but that coordination of rating with impairment of function will be expected in all instances). No examiner or treating clinician has indicated that the Veteran's right ankle disability is exceptional or unusual. Accordingly, the first step of the inquiry is not satisfied. Thus, there is no need to consider whether "related factors" are present under the second step of the inquiry, and referral for extraschedular consideration is not warranted. See Thun, 22 Vet. App. at 118-19. In sum, entitlement to a rating of 20 percent is granted for the Veteran's right ankle disability, from May 6, 2013, forward. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. ORDER As of May 6, 2013, entitlement to a rating of 20 percent for osteoarthritis of the right ankle is granted, subject to the law governing payment of monetary benefits. _________________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals