Citation Nr: 1746975	
Decision Date: 10/20/17    Archive Date: 10/31/17

DOCKET NO. 16-40 564A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for left ankle lateral collateral ligament sprain (claimed as left ankle injury).


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel



INTRODUCTION

The Veteran had active military service from March 1960 to March 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. Jurisdiction currently rests with the RO in Oakland, California. By way of background, the Veteran filed a notice of disagreement of the November 2014 rating decision for his left ankle disability and hip disability. However, the Veteran did not perfect his appeal for his hip disability.  As such, the Board will only discuss the Veteran's ankle disability. 

In July 2017, the Veteran testified at a videoconference hearing. The transcript of the hearing is of record. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

For the entire period on appeal, the Veteran's left ankle has had marked limitation in range of motion, but exhibited no evidence of ankylosis; malunion of os calcis or astragalus; or astragalectomy. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2016). 


CONCLUSION OF LAW

The criteria for an initial rating of 20 percent for left ankle lateral collateral ligament sprain have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and to Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, and 5107; see also 38 C.F.R. §§ 3.102 and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. 

In this case, VA satisfied its duty to notify the Veteran by way of an August 2012 letter. The VCAA letter notified the Veteran of what information and evidence is needed to substantiate his claim, what information and evidence must be submitted by the Veteran, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. The Veteran received all essential notice, had a meaningful opportunity to participate in the development of his claim, and was not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, neither the Veteran, nor his representative, alleged prejudice with regard to notice. Accordingly, VA satisfied its duty to notify. 

In regard to the duty to assist, the Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records has been fulfilled with respect to the issue on appeal. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded VA medical examinations in October 2014 and December 2016. Based on the examinations and the records, VA medical examiners were able to provide adequate opinions. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. 

In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran.

II. Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2016); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2016). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's left ankle lateral collateral ligament sprain is rated under Diagnostic Codes 5271. The Veteran's disability can be rated separately under Diagnostic Code 5270, 5272, 5273, and 5274, but any separate rating must be based on additional compensable disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). 

Pursuant to Diagnostic Code 5271, a 10 percent rating is warranted when the ankle exhibits moderate limitation in its range of motion. A 20 percent rating is warranted when the ankle exhibits marked limitation in its range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2016). A 20 percent rating is the highest schedular rating available under Diagnostic Code 5271. Id.

Other diagnostic codes relating to the ankle are Diagnostic Code 5270 (ankylosis), Diagnostic Code 5272 (ankyloses of subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). Those disabilities are not shown on examination, and the Board thus finds that application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a (2016).

At the July 2017 hearing, the Veteran testified that although he is able to do yard work, mow the lawn, and walk, his left foot and ankle condition would flare-up. During these flare-ups the Veteran stated that he would have major aches and that he would need to "take it easy." 

At the October 2014 VA examination, it was noted that the Veteran's left ankle had normal strength, no ankylosis, and only mild degenerative changes of the ankle joint. Range of motion testing showed dorsiflexion to 10 degrees and plantar flexion to 30 degrees, and pain was noted on rest and non-movement. The examiner also noted tenderness over the left lateral malleolus and instability of station of the left ankle, although anterior drawer and talar tilt tests were negative. A repetitive use test with at least three repetitions showed that repetitive use would not significantly limit functional ability. The Veteran reported flare-ups two to three times per week of one to three hours' duration, with additional pain and fatigue during flare-ups.

In the December 2016 VA examination, it was noted that the left ankle had normal muscle strength and no signs of ankylosis. However, after a repetitive use test with at least three repetitions, the examiner suspected the left ankle of instability or dislocation; talar tilt test was positive. Further, the examiner noted that the Veteran's dorsiflexion was limited to 10 degrees and plantar flexion to 20 degrees, with pain causing functional loss. The examiner specifically noted that there was no pain on passive motion and non-weight-bearing tests. The examiner further noted that the left ankle appeared deformed as the Veteran walked on the medial portion of his foot due to advanced osteoarthritis and posterior tibial tendon dysfunction. These findings are consistent with the treatment records. 

Upon review of the evidence of record, including both the VA examinations and the Veteran's treatment records, the Board finds that the Veteran's left ankle symptomatology warrants a disability rating of 20 percent. For instance, a March 2015 x-ray scan of the left ankle revealed degenerative changes of the midfoot and pes planus. March 2015 MRI and CT scans of the left ankle showed impingement with edema signal in lateral process of talus; adjacent calcaneus and abnormal signal in sinus Tarsi; mild tendinosis of Achilles tendon; osteoarthritis of the midfoot and of the tarsometatarsal joints; and mild edema signal and thickening within the plantar fascia. In August 2016, the Veteran's treating physician opined that the Veteran had marked limitations in his range of motion of the left foot and even recommended surgery. In fact, the dorsiflexion of his left foot was limited to less than five degrees on physical examination. 

Accordingly, the Board finds that a rating of 20 percent-the highest schedular rating available-is warranted for left ankle lateral collateral ligament sprain, as the records show reports of marked limitation in the left ankle's range of motion, significant limp, and major aches during flare-ups, throughout the appeal period.


ORDER

Entitlement to an initial rating of 20 percent for left ankle lateral collateral ligament sprain is granted.




____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs