Citation Nr: 1752398 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-27 666 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability rating for a left ankle disability in excess of 20 percent prior to October 1, 2013, in excess of 0 percent from October 1, 2013 through May 11, 2017, and in excess of 10 percent from May 12, 2017 onward. REPRESENTATION Appellant represented by: Arkansas Department of Veterans Affairs ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1991 to May 1994. This case is before the Board of Veterans' Appeals (Board) on appeal from February 2009 and November 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The February 2009 rating decision confirmed and continued a previously assigned 20 percent rating for the service-connected left ankle disability. In April 2009, the Veteran submitted new and pertinent evidence in support of her claim for a higher rating. In the November 2009 rating decision, the RO once again confirmed and continued the previously assigned 20 percent rating for the service-connected left ankle disability. The Veteran's Notice of Disagreement with that determination was received at the RO in March 2010 and this appeal ensued. In a July 2013 rating decision, issued during the pendency of the appeal, the RO reduced the 20 percent rating to 0 percent for the service-connected left ankle disability effective from October 1, 2013. In December 2016, the Board remanded the case back to the RO for additional development of the record. In that remand, the Board explained that although the Veteran had initially requested a hearing before a Veterans Law Judge, that hearing request was deemed withdrawn after the Veteran failed to report, without good cause shown, to a Board hearing scheduled for February 2013. Additionally, the Board noted that a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) had not been raised by the record because the Veteran had not contended that her service-connected disabilities rendered her unemployable and the record did not otherwise suggest such. Although the Veteran has since noted in August 2017 correspondence that she was denied a job at a VA medical center due to her service-connected left ankle disability, she has never suggested that she was precluded from all forms of gainful employment due to her service-connected disabilities. Accordingly, the Board continues to find that a claim for a TDIU has not been raised by the record. Before the case was sent back to the Board on appeal, the RO issued another rating decision in July 2017 which increased the noncompensable rating to 10 percent, effective from May 12, 2017. The issue on the cover page has therefore been recharacterized to reflect the staged ratings assigned for the entire period covered by this claim. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT For the entire period covered by this claim, the Veteran's service-connected left ankle disability has been manifested by limited motion due to pain and swelling, which is worse during flare-ups and with prolonged use; decreased strength, and instability; all of which results in a disability picture that more nearly approximates marked limitation of motion of the left ankle, but not ankylosis of the ankle. CONCLUSIONS OF LAW 1. Prior to October 1, 2013, the criteria for the assignment of a rating in excess of 20 percent for the service-connected left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5271 (2017). 2. Resolving all doubt in favor of the Veteran, the criteria for the assignment of a 20 percent rating, but not higher, for the service-connected left ankle disability have been more nearly approximated since October 1, 2013. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) in a November 2008 letter. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2017). See also, Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including her service treatment records, post-service treatment records, and VA examination reports. The claim was remanded in December 2016 to obtain outstanding VA medical records, and to afford the Veteran a VA examination. Outstanding VA treatment records were obtained and associated with the claims file, and the Veteran was afforded a VA examination for her left ankle in May 2017. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Following the examination, the Veteran submitted additional evidence in support of her appeal, along with a waiver of review by the RO in the first instance. The additional evidence has been reviewed and considered with respect to this decision. II. Increased Rating - Left Ankle Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claims. The Veteran's left ankle disability has been rated under Diagnostic Code 5271, which pertains to limitation of motion of the ankle. 38 C.F.R. § 4.71a. Under that code, a 10 percent rating is warranted for moderate limitation of motion of the ankle and a maximum 20 percent rating is warranted for marked limitation of motion of the ankle. Id. The normal range of ankle motion is to 20 degrees of dorsiflexion and to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. It is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). As noted above, the RO has issued staged ratings over the course of the appeal period. The previously assigned 20 percent rating was confirmed and continued pursuant to February 2009 and November 2009 rating decisions. The 20 percent rating was subsequently reduced to 0 percent effective from October 1, 2013, and then increased to 10 percent, effective from May 12, 2107. However, based on the Veteran's consistent reports of pain and swelling which worsen during overuse and/or during flare-ups, as well as her competent and credible statements indicating that her left ankle disability has not improved over time, the Board finds that the Veteran's overall disability picture more nearly approximates that of marked limitation of motion of the ankle for the entire period covered by this claim. Her statements are supported by MRI reports showing ligament abnormalities in the left ankle, and her treatment records showing ongoing chronic injury to the left ankle with instability. Around the time of her claim for increase, in April 2008, the Veteran re-injured her ankle and was treated for a left ankle sprain. She underwent physical therapy from April 2008 through June 2008. Those records show that she had rolled her ankle due to instability. She exhibited decreased strength in the left ankle compared to the right ankle. She also had decreased range of motion and walked with an antalgic gait. Even at the conclusion of her physical therapy in June 2008, she reported that her ankle was still quite sore. A VA examination report from August 2008 notes that the Veteran's left ankle gives way and is unstable. The Veteran reported pain, stiffness, and weakness, with severe flare-ups every two to three weeks. The Veteran reported pain on dorsiflexion at 10 degrees, and pain on plantar flexion at 30 degrees, at the time of the examination; however, the report does not indicate to what extent the left ankle is additionally limited during a flare-up. The Veteran did not have ankylosis. An April 2009 pre-employment physical notes that the Veteran continues to frequently turn the left ankle. Although full range of motion and no clear instability was noted at the time of the examination, the Veteran was nevertheless not cleared for any position that required heavy lifting or frequent repetitive motion due to her left ankle and right wrist disabilities. The Veteran's left ankle was examined by VA again in July 2012. Although the record shows a clear history of left ankle injury, treatment, and reports of pain and instability, the VA examiner indicated that the Veteran did not have an ankle condition, previously or currently, and found no abnormality on examination, based at least in part, on negative x-rays. As these findings are inconsistent with the other evidence of record, the Board finds that the July 2012 examination report carries no probative value. Moreover, an October 2014 MRI of the left ankle confirms that the Veteran does, in fact, exhibit objective evidence of a disabling ankle condition, which is consistent with the Veteran's reports of swelling, stiffness, and a feeling of not being able to fully flexion the left ankle. Specifically, the October 2014 MRI report notes the following impression: (1) Chronic features of medial collateral (deltoid) ligamentous sprain type injury with thickening of the ligamentous fibers, and overlying soft tissue swelling/edema with the medial peri-malleolar subcutaneous fat. (2) Pitting and apparent mechanical erosion along the medial surface of the talar bone, with occasional vacuole formation; some tiny cartilaginous joint mice are suggested in the medial tibiotalar joint compartment. (3) Thinning of the hyaline cartilage in the medial tibiotalar joint compartment with accompanying subligamentous spur formation, which may contribute to medial ankle impingement with the overlying medial malleolus. (4) Spurring at the tip of the lateral malleolus may produce lateral ankle impingement inferiorly. There is also possible laxity of the lateral collateral ligament, and minimal subcutaneous edematous fat was seen laterally. (5) A mild to moderate joint effusion was noted. There were no fractures or subluxation. The Veteran was afforded another VA examination in May 2017. The Veteran's dorsiflexion was limited to 15 degrees and plantar flexion was limited to 30 degrees. In August 2017, the Veteran submitted a copy of the May 2017 VA examination report which she had marked up with comments regarding inconsistencies between the actual examination, and what was noted on the examination report. Specifically, although the examiner indicated that there was no evidence of pain with weightbearing, the Veteran subsequently indicated that the examiner never had her perform any weightbearing exercises. Further, although the examiner indicated that there was no additional loss of function or range of motion after three repetitions, the Veteran subsequently indicated that the examiner never performed any range of motion testing following repetitive use, and never asked her if she had any functional limitation after repetitive use. However, the Veteran maintains that she does, indeed, have additional pain after repetitive use. She further indicated that she has flare-ups which further limit her ability to walk due to additional pain and swelling. She described her pain as "significant" during a flare-up. She also reported that her left ankle gives out often. Additionally, although the examiner indicated that there was no muscle atrophy of the left ankle compared to the right ankle, the Veteran indicated that the examiner never measured her ankles and that she does, in fact, have slight atrophy on the left side. Further, although the examiner suspected instability of the left ankle, the examiner did not, according to the Veteran, perform the anterior drawer test or the talar tilt test, even though the examination report reflects that such tests were performed. Finally, the May 2017 examiner noted that x-rays were completed and did not document arthritis; however, the examiner did not mention the October 2014 MRI report. In light of the foregoing, the Board finds that the Veteran's left ankle disability has been no less severe than when the Veteran filed her claim for increase in April 2008. As noted above, the Veteran has consistently reported that her ankle gives way frequently, resulting in additional pain, and occasional falls. The Veteran has consistently experienced limitation of motion of the left ankle due to pain, which is worse during flare-ups. Although the exact limitation of motion during flare-ups is not known, the Board has no reason to doubt the Veteran's credibility in this regard. Additionally, her claims of instability with ligament damage are supported by the October 2014 MRI which confirms effusion, laxity, and edema. For these reasons, the Board finds that the criteria for the assignment of a 20 percent rating, are more nearly approximated for the entire period covered by this claim because the totality of the probative evidence of record more nearly approximates an overall disability picture of marked limitation of motion of the ankle. Likewise, the Board finds that a rating in excess of 20 percent for the service-connected left ankle disability is not for application in this case. To warrant such a rating, the evidence would have to show ankylosis of the ankle, and such is not demonstrated at any time during the period covered by this claim. Absent evidence of ankylosis, which has not been shown, a higher rating for the Veteran's left ankle disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2017) When evaluating disabilities of the musculoskeletal system involving joints, in addition to the schedular criteria, adequate consideration must be given to functional loss due to flare-ups of pain, weakness, fatigability, incoordination, pain on movement, and lack of endurance. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board acknowledges the Court's recent decision in Correia v. McDonald, 28 Vet. App. 158 (2016) and has considered the applicability of the principles set forth in this case. In Correia, the Court held that VA examination reports must comply with the language of 38 C.F.R. § 4.59 by evaluating range of motion "for pain on both active and passive motion, in weight-bearing and non weight-bearing." Id. at 169-70. Here, the Veteran is in receipt of the maximum schedular rating for limitation of motion of the ankle; therefore, the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59 are no longer applicable. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (explaining that remand was not required even though the Board did not consider functional loss due to pain because the appellant was already receiving the maximum disability rating for limitation of motion available under the diagnostic code at issue). Thus, any examination inadequacies regarding range of motion testing as described in 38 C.F.R. § 4.59 have resulted in harmless error and additional examination is not warranted. The Board emphasizes that there must be a basis in fact for an assigned rating. 38 C.F.R. § 3.102 (2017). Absent evidence of ankylosis, a higher rating for the Veteran's left ankle disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5270; see also Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that the provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). (CONTINUED ON NEXT PAGE) ORDER Prior to October 1, 2013, a rating in excess of 20 percent for the service-connected left ankle disability is denied. From October 1, 2013, a 20 percent rating, but not higher, for the service-connected left ankle disability is granted, subject to the VA laws and regulations governing the payment of monetary benefits. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs