Citation Nr: 1753314 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 12-23 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an increased rating in excess of 20 percent for status post open reduction/internal fixation, distal fibula, right ankle, with degenerative joint disease (right ankle disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Saindon, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from January 1983 to December 1985. This matter comes to the Board of Veterans' Appeals (Board) from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland. Jurisdiction is retained by the Regional Office in Providence, Rhode Island. In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a Central Office Board hearing. The transcript is of record. Additional medical records have been added to the record since the last supplemental statement of the case. The Veteran waived RO consideration of these records at the July 2017 hearing. FINDING OF FACT The Veteran's right ankle disability is characterized by pain and limitation of motion; the ankle is not ankylosed, has not resulted in the malunion or removal of any bone, and has not resulted in frequent hospitalization or absences from work. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value. The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 129 (2000). Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value. If the evidence weighs in favor of the veteran or is in relative equipoise, the veteran will prevail. On the other hand, if the preponderance of the evidence is against the veteran, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has raised any 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). Increased Rating Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare-ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). The Veteran has been rated at 20 percent disabled under Diagnostic Code 5271. This is the highest rating available under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5271. For the Veteran to qualify for a higher schedular rating, he must be entitled to an evaluation under another diagnostic code, either alone or in combination with his current rating. Under the section of 38 C.F.R. § 4.71a labeled "The Ankle", diagnostic codes are available for ankylosis of the ankle, limitation of motion of the ankle (under which he is currently rated), ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, and astragalectomy. The Veteran was afforded VA examinations in March 2011, January 2013, and March 2017. Each of these examinations found that the Veteran did not have ankylosis of any kind, malunion of the os calcis or astragalus, or an astragalectomy. The Veteran also testified before the Regional Office in December 2012 that he did not have ankylosis. The evidence indicates that the Veteran does not have these alternative conditions, and as such, the alternative diagnostic codes are not applicable. The Veteran has been found to have arthritis of the ankle, but arthritis is to be rated under the corresponding limitation of motion diagnostic code for the affected joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran already has the maximum rating for limitation of motion for the affected joint. Diagnostic Code 5262 rates an ankle disability in the context of tibia or fibula impairment. The Veteran's medical records, however, do not suggest that the Veteran's tibia or fibula are impaired. This code is, accordingly, not applicable. The Veteran has already been granted separate service connection for scarring of the ankle from his earlier ankle surgery. The Veteran has not disagreed to date with the rating for the scarring and the issue is not before the Board. The remaining diagnostic codes are likewise inapplicable. As the Veteran is at the highest rating under the pertinent diagnostic code, and additional diagnostic codes do not apply, a schedular increased rating must be denied. Although the VA examiners did not denote whether they tested the Veteran's ankle in active and passive motion, there is no prejudice to the Veteran as he is already rated at the highest available rating for limitation of motion. A remand to obtain additional range of motion testing under active and passive testing conditions would not benefit the Veteran. At his July 2017 hearing, the issue of entitlement to an extra-schedular rating arose. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is adequate, and no extra-schedular referral is required. Id. Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation as "governing norms" such as marked interference with employment and frequent periods of hospitalization. The Veteran testified that his ankle caused him pain, infrequently gave out resulting in guarding behavior, and moved less than normal with weakened movement and impaired ability to execute skilled movements smoothly. The Veteran also testified that pain or discomfort was his primary symptom and that pain limited his movement. He also testified to stiffness. The Veteran's main symptoms of pain and limitation of motion are directly considered by the schedular criteria. Diagnostic Code 5271 specifically refers to limitation of motion, and 38 C.F.R. §§ 4.45 and 4.49 incorporates painful motion into the limitation of motion rating codes. Stiffness, less movement than normal, weakened movement, and the impaired ability to execute skilled movement are all examples of ways that a joint may have limited motion that should be considered by the rating criteria. The feelings of giving way that the Veteran testified to are also contemplated by the rating criteria. The Veteran testified that he had not actually fallen due to his ankle, but that he was guarding his ankle to prevent falling. Guarding is another type of limitation of motion and as such is contemplated by the limitation of motion diagnostic code. Even if the diagnostic code was assumed to be inadequate, the Veteran does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. The Veteran has testified that he can work with infrequent absences from work due to his ankle. He has told VA examiners the same thing. In addition, the medical records do not indicate that the Veteran has been frequently hospitalized for his ankle. The weight of the evidence is against the requirements for an extra-schedular rating referral. The preponderance of the evidence is against the claim, and an increased rating for the service-connected right ankle disability is denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating in excess of 20 percent for a right ankle disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs