Citation Nr: 1705797 Decision Date: 02/27/17 Archive Date: 03/03/17 DOCKET NO. 12-02 747A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left ankle (left ankle disability). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1977 to June 1994. This matter comes to the Board of Veterans Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. By way of brief procedural history, the Veteran filed a timely notice of disagreement in December 2011. In response to the January 2012 statement of the case, the Veteran submitted a request for a regional office hearing. See the February 2012 hearing request. The RO accepted the February 2012 hearing request in lieu of a substantive appeal (VA Form 9); therefore, the appeal has been perfected. FINDING OF FACT The Veteran's left ankle disability is manifested by no more than moderate limitation of motion. CONCLUSION OF LAW A rating in excess of 10 percent for left ankle disability is not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (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 the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2016). For increased-rating claims, section 5103(a) requires the Secretary "to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment." Vazquez-Flores v. Peake, 24 Vet. App. 94, 102-03 (2010) (Vazquez-Flores v. Peake II) (citing Vazquez-Flores v. Peake, 580 F.3d 1270, 1279-80 (Fed.Cir.2009) and Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008)). The Veteran was mailed appropriate VCAA notice in April 2011, prior to the initial August 2011 rating decision. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim. Id. VA's duty to notify has been satisfied. VA's duty to assist has also been satisfied. The Veteran has been afforded adequate VA examinations to assess the severity of his left ankle disability and he has not identified any outstanding pertinent evidence. Merits of the Claim Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA adjudicators must consider whether to "stage" the ratings, meaning assign different ratings at different times during the rating period to compensate him for times when the disability may have been more severe than at others. The Court has held that consideration of the appropriateness of a staged rating is required for an increased rating claim. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2016). Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that VA must analyze evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has also held that in its evaluation of musculoskeletal disabilities, joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other Diagnostic Codes assessing musculoskeletal function. Painful motion is an important factor of disability, and it is the intention of the Rating Schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59 (2016); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. 4.59 is not just limited to cases involving arthritis). Functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011). Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance. Id. at 37. In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss. Id. at 36. When the DC is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85. In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable Diagnostic Code. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable Diagnostic Code pertaining to range of motion simply because pain is present throughout the range of motion. Id. It is the intention of the rating schedule to recognize any painful, unstable or malaligned joint, due to healed injury, by assigning at least the minimum compensable rating for that joint. 38 C.F.R. § 4.59 (2014). The Court in Burton v. Shinseki expressly determined that 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, which involve residuals of injuries in non-arthritis contexts. 25 Vet. App. 1, 4-5 (2014). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected left ankle disability is currently rated at 10 percent disabling under DC 5003-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2016). Under DC 5003, which pertains to degenerative arthritis, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint involved. However, if the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating will be applied if limitation of motion is established by X-ray findings and objective evidence of limitation of motion, such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. A 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Under DC 5271, a 10 percent rating is warranted for moderate limitation of ankle motion and a 20 percent rating is warranted for marked limitation of ankle motion. 38 C.F.R. § 4.71a, DC 5271. The terms "moderate" and "marked" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (2016). The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II (2016). The Veteran was afforded a VA examination in April 2011. During the examination, the Veteran reported left ankle pain and stiffness. Examination of the left ankle showed signs of tenderness without edema, weakness, instability, deformity, subluxation or ankylosis. Dorsiflexion was limited to 20 degrees with pain and plantar flexion was limited to 45 degrees with pain. There was no additional functional impairment due to pain, weakness, fatigability, lack of endurance and incoordination or flare-up. The diagnosis of left ankle degenerative joint disease, status post arthrotomy was confirmed with no change. There was an additional diagnosis of scar due to surgery. The superficial linear scar measured 6 centimeters by 1 centimeter, was not painful, disfiguring or inflamed. In June 2013, the Veteran underwent another VA examination to determine the severity of his left ankle disability. Dorsiflexion was limited to 20 degrees and plantar flexion was limited to 45 degrees, both with no objective evidence of pain. After repetitive-use testing, the Veteran had less movement than normal; however, no pain, weakness, fatigability, lack of endurance and incoordination or flare-up. There was localized tenderness or pain on palpitation. The examiner noted a scar that was not painful, unstable or greater than 39 square centimeters. The Veteran was afforded an additional examination in March 2016. During the examination, the Veteran's dorsiflexion was limited to 20 degrees with pain and planter flexion was limited to 45 degrees. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation, crepitus or additional loss of function or range of motion upon repetitive-use testing. There was no reduction in muscle strength or ankylosis present. The examiner noted that the scar measured 5 centimeters by 0 centimeters and was not painful or unstable. After a review of the evidence, the Board finds that a rating in excess of 10 percent for the left ankle disability is not warranted. In this regard, there is no evidence of marked limitation of motion of the left ankle to warrant a 20 percent rating under DC 5271. The VA examinations revealed dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The VA examiners all determined that the left ankle disability had no additional loss of function or range of motion due to pain, weakness, fatigability, lack of endurance, incoordination or flare-up upon repetitive-use testing. Such left ankle impairment most closely approximates the criteria for a 10 percent rating which is indicative of moderate limitation of ankle motion. There is also no evidence to warrant a 20 percent rating under DC 5003 as there is no evidence X-ray evidence of involvement or 2 or more major joints or 2 or more minor joint groups. The Board has also considered additional limitation of function per 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this regard, the Board acknowledges the Veteran's complaints of pain and the finding of pain with weight-bearing found on the March 2016 VA examination. However, despite the noted symptoms, the objective evidence of record does not show any additional functional limitation that are tantamount to the degrees of limitation required to achieve the higher 20 percent evaluation. Notably, there is no indication that the Veteran's pain with weight-bearing caused marked interference in range of motion. As such, a rating is not warranted. 38 C.F.R. § 4.71a, DC 5271. The Board has also considered whether a higher rating is warranted under an alternate Diagnostic Code. However, there is no evidence of any ankylosis, malunion of the oscalcis or astragalus, or astragalectomy at any time during the claim period. Hence, a rating in excess of 10 percent for a right ankle disability is not warranted at any time during the claim period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5270 to 5274. Additionally, the Board notes that the Veteran has a linear scar on the left ankle, thus a separate rating may be warranted. The evidence does not indicate that the scar is painful, unstable or at least 39 square centimeters. Rather, the evidence shows that the scar is superficial and asymptomatic. 38 C.F.R. § 4.118, DCs 7801 to 7805. As such, the criteria for a separate rating for the right ankle scar have not been met. In sum, the Board finds that, at no time during the pendency of this claim has the Veteran's left ankle disability warranted a rating in excess of 10 percent. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Lastly, the Board has considered an extraschedular rating. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321 (b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321 (b)(1) (2016) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the Veteran's left ankle disability does not warrant referral for extraschedular consideration. In this regard, the level of severity of the Veteran's left ankle disability is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In view of the adequacy of the disability rating assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extra-schedular consideration. ORDER A rating in excess of 10 percent for a left ankle disability is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs