Citation Nr: 1801641 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-18 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a higher disability rating for left ankle fracture, status post open reduction and internal fixation, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to May 1986 and from February 1987 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the undersigned in February 2017. A hearing transcript is of record. The Veteran appeared at his hearing without his representative. The Board notes that while the Veteran's current representative of record is New York State Division of Veterans' Affairs, he moved from New York to Mississippi in April 2003. While he has the option to appoint a new representative at his present location at any future point, by filing a new form VA Form 21-22, his representation by New York State Division of Veterans' Affairs has not been revoked. Under these circumstances, the Board will proceed in deciding the claim on appeal. While the Veteran also initiated an appeal for the claim of entitlement to a higher disability rating for service-connected right shoulder dislocation, by including the issue in his January 2013 notice of disagreement, he specifically excluded the issue from his May 2014 substantive appeal, on VA Form 9. Thus, that issue is not on appeal before the Board. FINDING OF FACT Throughout the entire appellate period, the Veteran's left ankle fracture, status post open reduction and internal fixation, has been manifested by symptoms of painful, limited motion, and additional loss of mobility and an inability to bear weight on the ankle during periods of flare-ups, indicative of marked limitation of motion, but not by any ankylosis in plantar flexion. CONCLUSION OF LAW The criteria for a 20 percent disability rating, but not higher, for left ankle fracture, status post open reduction and internal fixation, have been met for the entire appellate period. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). In this case, VA provided adequate notice with respect to the higher rating claims in a letter sent to the Veteran in December 2011. VA also has a duty to assist a claimant with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of identified records to substantiate the claim. VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. While the Veteran has not reported receiving specific VA or private treatment for his claimed left ankle disability or otherwise identified available records, he has been afforded adequate VA examinations for the disability, as indicated in the discussion below. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the Veteran's February 2017 Board hearing, the undersigned identified the issue on appeal and inquired as to the relevant symptoms, medical treatment and employment history. This complied with Bryant. There is no indication of additional existing evidence that is necessary for a fair adjudication of the Veteran's increased rating claim on appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist with respect to this claim. II. Higher Disability Rating for Left Ankle Disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (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. A veteran's entire history is to be considered when making disability evaluations. See, generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. 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." Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's service-connected left ankle disability is currently assigned a 10 percent under the criteria for limitation of ankle motion found at 38 C.F.R. § 4.71a, DC 5271. Limitation of motion of the ankle is assigned a 10 percent rating for "moderate" limitation and a 20 percent rating for "marked" limitation. 38 C.F.R. § 4.71a, DC 5271. A higher disability rating for musculoskeletal ankle disability is not available unless ankylosis is present. 38 C.F.R. § 4.71a, DC 5270. The examination reports of record, however, have specifically noted that the Veteran has not had ankylosis of the left ankle. While the Rating Schedule does not provide any information as to what manifestations constitute "moderate" or "marked" limitation of ankle motion, guidance can be found in VBA's M21-1 Adjudication Procedures Manual. Specifically, the M21-1 states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. The Veteran was afforded VA or VA contracted examinations of his left ankle in January 2012, March 2014, May 2015, and November 2016. All examination reports recorded left ankle dorsiflexion to be from zero to 10 degrees. The May 2015 VA contracted examination report recorded left ankle plantar flexion to also be from zero to 10 degrees. The January 2012, March 2014, and November 2016 VA examination reports all noted findings indicative of less limitation of left ankle plantar flexion, with the highest range of motion being from zero to 35 degrees. During each of his VA examinations, the Veteran has reported having flare-ups of left ankle disability, occurring several times per week, lasting for approximately one hour each time, and resulting in additional limitation of mobility. Flare-ups occurred during extended periods of standing, when walking greater than 150 yards, and also resulted in increased pain. The May 2015 VA contracted examination report additionally noted that the pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time, but did not indicate that there was any additional limitation of motion with such repeated use over a period of time. During his February 2017 Board hearing, the Veteran testified that his ankle disability had increased in severity and had become significantly different over the last five years. He reported that during flare-ups of the disability, he could not bear any weight on the ankle. While the examination reports of record did not consistently determine to what extent the Veteran experienced additional functional loss, to include limitation of motion, during his frequent flare-ups of left ankle disability, he has consistently reported additional loss of mobility and an inability to bear weight on the ankle during flare-ups. The Board has determined that such additional disability during flare-ups is consistent with marked limitation of motion. Accordingly, as a result of the evidence, including the examination reports and the Veteran's competent and credible reports, the Board will afford him the benefit of the doubt and find that during periods of flare-ups, symptoms associated with the left ankle disability result in marked limitation of motion; thereby warranting a 20 percent disability rating for the entire appeal period. As noted, because the evidence does not show that the Veteran's has had ankylosis of the left ankle joint, higher 30 percent and or 40 percent ratings, which require such ankylosis of the joint in plantar flexion, are not available. While VA must, in some circumstances, consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Board has found that the maximum schedular evaluation based on limitation of motion is warranted, and that a higher rating would require the presence of ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Additionally, because range of motion findings cannot result in a higher rating, the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), that 38 C.F.R. § 4.59 creates range of motion testing requirements with which VA must comply, is not for application. As an additional consideration, while the examination reports describe a surgical or other associated scar present with the Veteran's service-connected left ankle disability, the scar has been measured to be, at most, eight centimeters by 0.2 centimeters, thus not covering a total area of at least 39 square centimeters, and the scar has been noted to be not painful or unstable. Thus, a separate compensable rating for the associated scar is not warranted. See 38 C.F.R. § 4.118, DCs 7801, 7802, & 7804. Given the Veteran's reported left ankle symptomatology, the Board has considered the question of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The record does not establish that the rating criteria are inadequate for rating the Veteran's left ankle disability. Specifically, his symptoms of ongoing, throbbing pain; instability, including fear of falling as a result of the ankle; frequent inability to bear weight on the ankle; and limitation of motion of the ankle, are all contemplated by the appropriate rating criteria as set forth above. Significantly, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The schedular criteria for musculoskeletal disabilities, therefore, contemplate a wide variety of manifestations of functional loss, and the Veteran has not demonstrated any symptomatology that falls outside the scope of the applicable criteria. Thus, the Board need not consider whether the disability has caused marked interference with employment during the appeal period; and therefore, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). A total rating based on individual unemployability (TDIU) due to service-connected disability is a potential part of a rating claim when such claim is expressly raised by a claimant or reasonably raised by the record. While the Veteran has reported that his left ankle disability has caused some difficulties with his employment, he specifically reported during his February 2017 Board hearing that he has maintained full-time employment as a production control manager, and that he has not lost time from work because of the disability. Thus, the Board finds that the issue of entitlement to a TDIU has not been raised by the record pursuant to Rice v. Shinseki, 22 Vet. .App. 447 (2009). Resolving reasonable doubt in the Veteran's favor, the Board finds that a 20 percent disability rating is warranted for left ankle fracture, status post open reduction and internal fixation, for the entire appeal period. ORDER Entitlement to a 20 percent disability rating for left ankle fracture, status post open reduction and internal fixation, is granted, subject to controlling regulations governing payment of monetary awards. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs