Citation Nr: 1751951	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-08 167	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an initial compensable rating for service-connected residuals of a gunshot wound to the left ankle with Achilles tendon repair.


ATTORNEY FOR THE BOARD

L. Bristow Williams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1980 to July 1993.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

The Veteran originally elected to have his case heard by a Veterans Law Judge (VLJ) via a Travel Board hearing.  However, in an August 2014 signed statement, the Veteran withdrew his request and indicated that he desired to have his case forwarded to the Board for adjudication.  To date, he has not requested a new Board hearing.  Accordingly, the Board considers his hearing request to be withdrawn.  38 C.F.R. § 20.704(d) (2017).

In September 2015, the Board remanded the claim for further development.  The claim is now returned to the Board for further appellate review.


FINDING OF FACT

The Veteran's service-connected left ankle disability is manifested by complaints of pain and limited motion.


CONCLUSION OF LAW

The criteria for an initial disability rating of 10 percent, but no higher, for residuals of a gunshot wound to the left ankle with Achilles tendon repair have been. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110(a) (West 2014); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veteran was provided with a VA examination in August 2011 and a VA addendum opinion March 2012 that address the nature and severity of the residuals of a gunshot wound to the left ankle with Achilles tendon repair.  The Board remanded the appeal in September 2015 to afford the Veteran an updated VA examination.  The Veteran was scheduled for this examination in March 2016; however, he contacted the RO and advised that he was travelling out of state and would be unavailable for examination until the end of April 2016.  Another examination was scheduled in May 2016; however, the Veteran contacted the RO to cancel that examination, and advised that he did not wish to reschedule.   

Given the RO's attempts to schedule the Veteran for an examination on two occasions, the Veteran's choice not to attend the most recent examination, and his indication that he does not want to reschedule the examination, the Board finds that VA has no remaining duty with regard to scheduling a medical examination and opinion in conjunction with this claim.  Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim.  Woods v. Gober, 14 Vet. App. 214, 224   (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (a veteran cannot passively wait for help from VA).

The Veteran has not raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Left Ankle Disability

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of a veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found.  Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending.).

The Veteran filed his initial claim requesting service connection for ankle pain in March 2011.  In the June 2012 VA rating decision, service connection for limited motion of the left ankle, status post gunshot wound with Achilles tendon repair was granted, and the Veteran was assigned a noncompensable (0 percent) disability rating for the entire appeal period effective from March 31, 2011.  See 38 C.F.R. § 4.71a, Diagnostic Code 5271. 

Diagnostic Code 5271 provides the following rating criteria for limitation of motion of the ankle: a 10 percent rating for moderate limited motion and 20 percent, the maximum available, for marked limited motion.  For VA compensation purposes, 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 rating schedule does not define the terms "moderate" or "marked," as used in Diagnostic Code 5271 to describe the degree of deformity of the ankle.  Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just."  38 C.F.R. § 4.6.

The Veteran was provided with a VA examination in August 2011.  The Veteran reported he gets sharp pain if he stands or sits too long, and that the left ankle hurts based on how much work he does or how much he is on his feet.  The examiner noted his pain is dull progressing to a sharp ache rated about 6/10 and sometimes a 7-8/10 on painscale.   On examination, there was tenderness to palpation of the left lateral malleolus and soft tissue swell at the Achilles tendon at the level of joint line.  Range of motion testing revealed a left ankle plantar flexion of 35 degrees with no pain and left ankle dorsiflexion of 15 degrees with no pain.  There was no additional loss of motion or pain after repetition.  The examiner found that there were no functional effects of the Veteran's left ankle condition.  Muscle strength testing and joint stability were both normal.  There was no finding of a non-union, malunion, or ankylosis.  The examiner did not provide any testing or discussion of neurological symptoms related to the Veteran's left ankle.  

In the September 2015 Board decision, this appeal was remanded in order to provide the Veteran with another examination due to the lack of testing or discussion related to the neurological symptoms of his left ankle disability during the August 2011 VA examination.  However, as previously discussed, the Veteran cancelled scheduled examinations in March 2016 and May 2016, and denied a request to reschedule.

Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.  38 C.F.R. § 3.655(b).

The current symptomatology includes tenderness on palpitation, swelling, and pain upon overuse, with some limited motion to 35 degrees in plantar flexion and 15 degrees in dorsiflexion.  The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59.  In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.  Here, the Board finds that a minimum 10 percent rating is warranted per the provisions of 38 C.F.R. § 4.59 based on the Veteran's credible complaints of pain on overuse, tenderness to palpation, and objective evidence showing limited motion (albeit slight). 

That stated, the Board finds that the Veteran's service-connected left ankle disability has not been manifested by marked limited motion warranting a rating higher than 10 percent under Diagnostic Code 5271.  As noted above, range of motion testing revealed limitation of only 10 degrees less than normal in plantar flexion and five degrees less than normal in dorsiflexion.  There was no additional loss of motion or pain after repetition.  The Veteran reported no flare ups, and the examiner found that there were no functional effects of the Veteran's left ankle condition shown on examination.  In light of this medical observation, the Board also finds that Veteran's disability picture for the entire appeal period does not more closely approximate the criteria for a higher rating based on the presence of additional functional loss under 38 C.F.R. §§ 4.40, 4.45, and the holdings in DeLuca v. Brown, 8 Vet. App. 202, 205 (1995).  

The Board has also considered whether higher initial ratings are warranted under additional rating criteria for the ankles: Diagnostic Code 5270 (ankylosis), Diagnostic Code 5272 (ankylosis of subastragalar or tarsal joint), Diagnostic Code 5273 (malunion of os calcis or astragalus), and Diagnostic Code 5274 (astragalectomy). 3 8 C.F.R. § 4.71a.  After a review of the evidence discussed above, to include the Veteran's lay statements, these conditions are not shown on examination and application of these diagnostic codes is not warranted.  

The Board has also considered whether the Veteran's ankle disability should be more appropriately rated under diagnostic codes pertaining to neurological impairment.  In September 2015, the Board recognized that since his August 2011 VA ankle examination, the Veteran expressed his belief that there was nerve impairment related to the left ankle, and that he had been experiencing sensory symptoms.  The Board specifically remanded the case so that these observations could be clinically explored, and so that a current and complete assessment of the severity of the Veteran's ankle disability could be obtained.  To the extent the August 2011 VA examiner's report lacks sufficient information regarding potential nerve impairment, or any other range of motion test results or opinions, such could have been addressed at the newly scheduled examination.  However, as the Veteran did not appear for the scheduled examinations, and has indicated that he does not want to reschedule them, the Board must rate the Veteran's disability based on the information and evidence before it.  

The evidence of record demonstrates that the Veteran's left ankle disability has been manifested by pain and limited motion throughout the appeal period, warranting a minimum 10 percent rating under the provisions of 38 C.F.R. § 4.59, but no higher.  The functional equivalent of marked limited motion has not been shown at any time during the appellate period.  The benefit of the doubt rule is not for application, as the evidence of record is not in equipoise.


ORDER

An initial 10 percent rating, but no higher, for residuals of a gunshot wound to the left ankle with Achilles tendon repair, is granted.



____________________________________________
V. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs