Citation Nr: 1752441 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-23 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for a left ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2014, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. In April 2014 and January 2017, the Board remanded the matter. It is again before the Board. FINDING OF FACT The Veteran has no more than moderate limitation of left ankle motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014). Upon receipt of a complete or substantially complete application for benefits, the VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from the VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2017). All identified and available treatment records have been secured to the extent possible, including VA examinations and applicable health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). When the VA provides an examination, the VA must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was provided with a VA examination in January 2017 concerning the left ankle disability. The Board finds that the report of the January 2017 examination provides the information needed to fairly decide the claim for increased rating. The examiner reviewed and commented on the evidence of record, examined the Veteran, and described the disability in sufficient detail to enable the Board to make a fully informed decision on the claim. D'Aries v. Peake, 22 Vet. App. 97 (2008) (examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one); Monzingo v. Shinseki, 26 Vet. App. 97 (2012) (examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for the opinion, even when the rationale does not explicitly lay out the examiner's journey from the facts to a conclusion); Acevedo v. Shinseki, 25 Vet. App. 286 (2012). The examiner specifically acknowledged and discussed what the medical evidence of record did and did not show in connection with the claim. The Veteran's contentions were addressed. There are no apparent inconsistencies or ambiguities in the examination reports. The Board, in its own lay capacity, is not otherwise qualified to call into question the VA examiner's medical judgment, nor does the Board find any reason to do so. Monzingo v Shinseki, 26 Vet. App. 97 (2012). As the examination and opinion has sufficiently informed the Board of the examiner's judgment on the medical question at issue, the Board finds that the January 2017 VA examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, in light of the performance of the requested examination, and the further adjudication of the appeal, the Board finds that there has been substantial compliance with the prior remand request. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further notice or assistance is required to comply with the duties to notify and assist. Accordingly, the Board will proceed with a decision. Increased Ratings Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). 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 service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Ankle Disability The Veteran contends that the evidence of record warrants a higher rating than the currently established 10 percent rating for a service-connected left ankle disability. For the reasons that follow, the Board concludes that an increased rating is not warranted. The Veteran's left ankle disability is rated 10 percent under Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent rating is assigned for moderate limitation of ankle motion. Marked limitation of ankle motion warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). The terms moderate and marked are not defined in the rating schedule and, rather than applying a mechanical formula, the VA must evaluate all the evidence in order to ensure that Board decisions are equitable and just. 38 C.F.R. § 4.6 (2017). Normal range of motion for the ankle is to 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (2017). A March 2009 VA examination notes that the Veteran had a well-documented history of subtalar dislocation of the left ankle in 1982, with a cast for twelve weeks. The Veteran stated he continued to experience chronic pain and occasional swelling with prolonged standing, walking, and running. The condition had been progressive. He complained of a constant dull ache with increased pain with prolonged standing, walking, running, or climbing or descending stairs. He stated that the ankle was easily inverted on uneven terrain. There was no requirement for braces, supports, or other assistive devices. There was no history of surgery. He was treated with rest, activity modification, and Motrin. There was no significant adverse effect on normal occupational or recreational activities. There was no evidence of pain on motion, fatigue, weakness, lack of endurance, or loss of coordination with repetitive motion. There was mild tenderness on palpation. There was no effusion, edema, instability, weakness, redness, heat, abnormal movement, or guarding of movement. Gait, posture, and balance were normal. There was no evidence of callosities, breakdown, or unusual shoe wear pattern. There was no ankylosis. Left ankle range of motion was to 20 degrees of dorsiflexion, 30 degrees of plantar flexion, 30 degrees of inversion, and 20 degrees of eversion. X-rays showed a small dorsal calcaneal spur, and were otherwise within normal limits for his age. A September 2012 VA examination diagnosed remote left ankle dislocation with residuals. The Veteran stated the ankle was more painful since the previous examination. The Veteran did not report flare ups. Left ankle plantar flexion was to 45 degrees or greater than no objective evidence of painful motion. Left ankle dorsiflexion was to 20 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with three repetitions. After the test, plantar flexion with no change in range of motion. The Veteran had functional loss due to less movement than normal. There was no localized tenderness or pain on palpation of the ankle. Strength was 5/5. There was no laxity or ankylosis. The Veteran did not use any assistive devices for locomotion. A June 2014 VA examination diagnosed chronic left ankle sprain with ligamental laxity and joint instability, status post remote subtalar dislocation. The Veteran stated that stability had worsened. He took Celebrex. The left ankle tended to invert walking on uneven surfaces. Descending stairs was difficult due to perceived imbalance. He did not continue to wear a brace or boot as no improvement was seen. The left ankle pain was of variable intensity, with an average of 5/10. Pain was on both sides of the ankle. The described bruising and swelling with prolonged standing or walking. Pain decreased with reclining, elevation, and Celebrex. His last fall was two week prior to the examination with an estimated three falls in six month walking on uneven ground. He took Tylenol as needed. The Veteran did not report flare ups. Plantar flexion was to 80 degrees with objective evidence of painful motion at 45 or greater degrees. Dorsiflexion was to 0 degrees with objective evidence of painful motion at 0 degrees. The Veteran was able to perform repetitive use testing with three repetitions, with the same results. The Veteran had additional limitation following repetitive use testing. The left ankle had less movement than normal, incoordination, painful movement, and disturbance of locomotion. There was localized tenderness or pain on palpation of the joint or soft tissue of the ankle. Muscle strength was 5/5. Laxity was shown on talar tilt test. Ankylosis was not shown. The Veteran used a brace occasionally. There was not functional impairment such that no effective function remained that would be equally well-served by amputation with prosthesis. X-rays showed a small dorsal calcaneal spur and were otherwise normal for his age. In January 2017, a VA examiner conducted a review of the Veteran's left ankle disability. The examiner reviewed the previous medical records, the Veteran's lay statements, and examined both left and right ankles. The examiner noted that the Veteran had been diagnosed with residuals of a dislocated left ankle with traumatic arthritis while in service. The examiner reported the Veteran's lay statements in which he indicated he still had left ankle pain episodes, up to 6/10 on a pain scale, described as dull pain, and took Tylenol and Naproxen as needed for pain. The Veteran did not report flare-ups of the ankle. The Veteran reported functional loss or impairment of the ankle, stating that ankle pain impaired his ability to do prolonged walking, walking upstairs, and that he had instability with recurrent falls. Although the Veteran reported at the examination that he constantly used a brace and regularly used a cane, he testified at the hearing before the Board that he did not use braces, canes, or crutches. The examiner also compared December 2008 and June 2014 X-rays of the left ankle and found no further degenerative or traumatic arthritis. The report indicates that both the left and right ankles were evaluated as to range of motion and pain. The right ankle showed normal range of motion with no evidence of pain upon weight bearing and no evidence of tenderness or pain upon palpation. Range of motion testing of the left ankle was dorsiflexion to 11 degrees and plantar flexion to 20 degrees with pain upon motion. The examiner concluded that the range of motion and level of pain did not contribute to a functional loss. The examiner found no evidence of pain with weight bearing or on passive range of motion testing. The examiner also did not find localized tenderness or pain on palpation. Repetitive motion testing produced no additional symptoms. The examiner noted normal muscle strength in both ankles and no instability in either ankle. No ankylosis was found. The Veteran's private treatment records do not contradict the VA examiner's findings. The treatment records are substantially similar to the findings of the examinations. In this case, the Board finds is no evidence of marked limitation of motion. On examinations, the Veteran had dorsiflexion at worst limited to 11 degrees and plantar flexion at worst limited to 20 degrees, which the Board finds is consistent no more than moderate limitation of ankle motion. The Board has considered painful motion and other factors in finding that to constitute no more than moderate limitation of motion. In light of the range of motion consistent with moderate functional loss, no evidence of flare-ups, and the Veteran's ability to perform repetitive use testing with no additional functional loss, the Board finds that the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent for the Veteran's left ankle disability. The evidence does not show marked limitation of ankle motion, ankylosis, malunion of the os calcis or astragalus, or astragalectomy, which would be required for a higher rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274 (2017). Accordingly, as the preponderance of the evidence is against the claim for an increased rating for a left ankle disability, the claim must be denied. 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for a left ankle disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs