Citation Nr: 1751558 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 00-00 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 30 percent for left ankle disability for the periods from December 23, 1997 to September 19, 2005 and from May 15, 2009 to May 11, 2013, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Underwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to February 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2001, the Veteran appeared at a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is in the claims file. That VLJ has since retired. In July 2012, the Veteran appeared at another Board hearing before a different VLJ, and a transcript of that hearing is also in the claims file. That VLJ has also retired. The Veteran was offered the opportunity to appear at another Board hearing before the undersigned VLJ in a letter sent in August 2015, but she has declined this opportunity and waived her right to further Board hearings. In a November 2015 rating decision, the Board increased the schedular rating for the left ankle disability from 20 to 30 percent disabling during all periods under consideration. In so doing, the Board also found that entitlement to an extraschedular rating for left ankle disability was not warranted. The Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). As explained in a July 2016 Joint Motion for Partial Remand (JMPR), it was determined that the Board's November 2015 analysis was insufficient as to the question of entitlement to extraschedular disability. Thus, to the extent that the Board's decision denied entitlement to a rating in excess of 30 percent during the periods under consideration, it was vacated. While the specific deficiency cited related only the extraschedular discussion, the Board finds that the terms of the JMPR also call for reconsideration of schedular entitlement beyond the 30 percent currently assigned. Hence, the issue on appeal has been characterized accordingly. On remand, the Agency of Original Jurisdiction (AOJ) granted service connection for fibromyalgia and a mental disorder due to fibromyalgia pain, with depression, sleeping problem, and memory loss in a February 2016 rating decision. The Board denied service connection for rheumatoid arthritis in a May 2017 decision. These issues are no longer on appeal. Finally, a claim of entitlement to service connection for a hip disorder under the provisions of 38 U.S.C.A. § 1151 was remanded by the Board in January 2014, and again in May 2017. The development requested in the remand having not yet been completed, this issue is not presently in appellate status; it will be the subject of a future decision, if in order. 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 covered by this claim, the Veteran's left ankle disability has been manifested by no more than moderate instability. CONCLUSION OF LAW For the entire period covered by this claim, resolving reasonable doubt in the Veteran's favor, the criteria for the assignment of a separate 10 percent evaluation for the Veteran's left ankle disability on the basis of instability have been met. See 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.45, 4.71a, Diagnostic Code 5273 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA is to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). During the course of the appeals process, the Veteran has been provided with multiple letters which satisfy VA requirements. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the Veteran has demonstrated a clear understanding of the evidence necessary to support her claim and the elements that must be proven, as she has filed multiple appeals to the Court. No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting her in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. Throughout the appeals process, the Veteran was afforded multiple VA examinations to include in November 1998, January 1999, July 1999, August 2005, September 2010, and May 2013. She has cited numerous concerns regarding a number of VA examinations and VA has responded to her inquiries. In a November 2015 decision, the Board concluded that the findings on examination throughout the appellate period were largely consistent with the May 2013 VA examination, which the Veteran had not expressed dissatisfaction as well as the resulting rating, which she did not appeal. Thus, the Board finds that the duty to assist with respect to examinations of the left ankle disability is satisfied. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. II. Rating Analysis The Veteran contends that she is entitled to a rating in excess of 30 percent for left ankle disability for the periods from December 23, 1997 to September 19, 2005 and from May 15, 2009 to May 11, 2013. Disability ratings are determined by applying the criteria set forth in VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3. 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 or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. See Fenderson, 12 Vet. App. at 126-27; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to give evidence of symptoms observable by her senses, and the Board finds her credible here, as her statements are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377. III. Factual Background and Legal Analysis In November 2015, the Board granted the Veteran entitlement with an initial disability rating of 30 percent for left ankle disability for the periods from December 23, 1997 to September 19, 2005 and from May 15, 2009 to May 11, 2013 pursuant to DC 5270, ankylosis of the ankle. As noted above, the November 2015 decision has since been vacated, to the extent that a rating in excess of 30 percent was denied during the periods on appeal. The Board must thus reconsider entitlement to a higher evaluation. The Board has considered the award of 30 percent under Diagnostic Code 5270, for ankylosis of the ankle. Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Ankylosis of the ankle in plantar flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The next-higher 40 percent disability rating is not warranted at any point during the claims period. Such a rating would require evidence of ankylosis in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with a deformity of abduction, adduction, inversion, or eversion. None of the VA examination or treatment records from 1997 through the present time has shown ankylosis to these extreme angles, or the types of deformity indicated. Rather, the May 2013 VA examination demonstrated ankylosis at less than 30 degrees of plantar flexion, and ankylosis in dorsiflexion between 0 and 10 degrees. The May 2013 findings represent the worst symptomatology of record; no other medical data indicates ankylosis supportive of a higher evaluation. Thus, as determined in November 2015, the Board again finds no basis for a rating in excess of 30 percent for the left ankle disability under Diagnostic Code 5270. (It is noted that the JMPR vacating that decision found no fault as to this portion of the analysis.) The Board has also considered whether any other schedular codes might afford a higher, or separate, rating for the left ankle disability on appeal. In this regard, it is noted that Veteran has reported left ankle instability. See July 2012 hearing Transcript. She is competent to report such observable symptomatology and the Board finds her description of symptoms to be credible. As the record thus shows left ankle instability, the Board finds that a separate rating under Diagnostic Code 5273, for malunion of os calcis, is appropriate here. Although the Veteran has not been diagnosed with malunion of os calcis, she may still be rated under this code because its symptoms can include instability; as such it is analogous to the disability picture at issue. Moreover, as instability involves distinct symptoms and poses different problems from the limitation of motion accounted for by the rating under Diagnostic Code 5270, assignment of a separate rating for instability does not violate the rule against pyramiding. 38 C.F.R. § 4.14. Under Diagnostic Code 5273 a 10 percent rating is afforded for moderate malunion of os calcis or astragalus and a maximum of 20 percent is afforded for a marked malunion of os calcis or astragalus. The objective evidence here fails to demonstrate left ankle instability. For example, VA examination in May 2009 indicated that the ankle was stable. Likewise, examination in May 2013 showed no laxity or instability. For this reason, the weight of the evidence is against a finding of marked symptoms; however, resolving doubt in the Veteran's favor, her lay statements of instability are found to support an evaluation of 10 percent, for moderate symptomatology under Diagnostic Code 5273. In light of the above award, the Veteran is now in receipt of ratings that contemplate both limitation of motion and associated factors such as pain and weakness, as well as ankle instability. At this point, then, all symptoms complained of have been addressed via the rating schedule. As the assigned schedular evaluations now adequately contemplate all aspects of the disability picture on appeal, no referral for extraschedular consideration is required, pursuant to Thun. Again, the deficiency in the November 2015 Board decision, as identified in the July 2016 JMPR, was the failure to adequately explain the basis for the determination that extraschedular consideration was not warranted in this case. The Board finds, however, that the above analysis, to include the additional award of service connection on a schedular basis, now appropriately addresses the concerns raised in the JMPR. In sum, a rating in excess of 30 percent under Diagnostic Code 5270 is not warranted. However, a separate 10 percent evaluation for instability under Diagnostic Code 5273 is appropriate. As all symptoms of the left ankle disability have now been addressed via the rating schedule Referral for extraschedular consideration is no longer necessary. ORDER For the entire rating period covered by this claim, entitlement to a left ankle disability rating of 10 percent on the basis of instability is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs