Citation Nr: 1751168 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-12 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for a left ankle disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from September 1961 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2017, the Board remanded the Veteran's claim for further development. The Board is satisfied that there was at the very least substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-157 (1999). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior December 22, 2015, the Veteran's left ankle disability did not result in any ankylosis with plantar flexion greater than 30 degrees, dorsiflexion greater than zero degrees, or abduction, adduction, inversion, or eversion deformity. 2. From December 22, 2015, the Veteran's left ankle disability resulted in ankylosis with eversion deformity. CONCLUSIONS OF LAW 1. Prior to December 22, 2015, the criteria for a disability rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-74 (2017). 2. From December 22, 2015, the criteria for a rating of 40 percent, but no higher, for a left ankle disability have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.150, Diagnostic Code 5270 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he declined. The Veteran was also provided VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In January 2006, the Veteran submitted a claim for an increased rating, which was denied by the May 2013 rating decision. The Veteran asserts that he is entitled to a higher rating. With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274, set forth relevant provisions. Diagnostic Code 5270 evaluates ankylosis of the ankle. A 20 percent rating is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is assigned for ankylosis of the ankle in plantar flexion between 30 and 40 degrees or dorsiflexion between 0 and 10 degrees. A 40 percent rating is assigned for ankylosis of the ankle in plantar flexion at more than 40 degrees, dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. Diagnostic Code 5271 evaluates range of motion in the ankle. A 20 percent rating is assigned for marked limitation of motion. This constitutes the highest schedular rating based on limitation of motion. Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint. No VA examiner has diagnosed ankylosis of the subastragalar or tarsal joint, and VA treatment records fail to suggest the presence of ankylosis of the subastragalar or tarsal joint. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus. The medical record does not document malunion of the os calcis or astragalus of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document removal of the talus bone of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran was initially assigned a 20 percent rating under Diagnostic Code 5271, which represents the maximum rating schedular rating based on limitation of motion. The only higher available ratings that can be assigned are for ankylosis. The Veteran's treatment records show that prior to December 22, 2015, ankylosis of the left ankle was not shown. However, in October 2010, June 2014, and September 2015, his left ankle demonstrated eversion deformity. In April 2013, the Veteran was afforded a VA examination. He reported that he had left ankle pain, had a limp, and could hardly walk without a leg brace. He reported that he had flare-ups with prolonged sitting and standing. On examination, he demonstrated left ankle plantar flexion to 15 degrees with pain at 10 degrees and dorsiflexion to 10 degrees with pain at 5 degrees. Repetitive use testing resulted in reduced plantar flexion to 10 degrees and dorsiflexion to 5 degrees. The examiner indicated that the Veteran's left ankle resulted in less movement than normal, weakened movement, excess fatigability, pain on movement, deformity, disturbance of locomotion, and interference with sitting, standing, and weight bearing. He had slightly reduced 4/5 left ankle strength. The examiner specifically found that the Veteran did not have ankylosis. The examiner indicated that the Veteran regularly used a brace and occasionally used crutches. The examiner reported that due to the Veteran's left ankle severe deformity, he could hardly walk without use of the leg brace. On December 22, 2015, treatment records show that the Veteran had no available range of motion in his left ankle due to arthrodesis. In May 2017, the Veteran was afforded another VA examination. The examiner reported that the Veteran had no left ankle range of motion due to arthrodesis, which is artificial ankylosis by surgical fusion. The examiner reported that the Veteran had ankylosis of the left ankle with no range of motion beginning in 2015. Prior to December 22, 2015, the Board finds that the criteria to assign a rating in excess of 20 percent for the Veteran's left ankle disability have not been met. The Veteran was already in receipt of the maximum schedular rating for limitation of motion. In addition, ankylosis of the ankle was not shown. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Veteran is in receipt of the maximum rating allowed based range of motion. The only higher ratings available are a 30 percent rating and a 40 percent rating for ankle ankylosis. Where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Prior to December 22, 2015, the Veteran's left ankle demonstrated eversion deformity. However, he continued to have range of motion. Beginning on December 22, 2015, he had no available range of motion, which was confirmed by the May 2017 VA examiner. As such, from December 22, 2015, the criteria for a 40 percent rating under Diagnostic Code 5270 have been met. To this end, the Veteran demonstrated findings consistent with 20 percent rating under Diagnostic Code 5272 for a left ankle disability prior to December 22, 2015. However, beginning December 22, 2015, the Veteran demonstrated findings consistent with a 40 percent rating under Diagnostic Code 5270. As such, the criteria for a schedular rating of 40 percent for the Veteran's left ankle disability have been met as of December 22, 2015, and to that extent the Veteran's claim is granted. ORDER Prior to December 22, 2015, a rating in excess of 20 percent for the Veteran's left ankle disability is denied. From December 22, 2015, a 40 percent rating for a left ankle disability is granted, subject to the provision governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs