Citation Nr: 18151650 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-40 503 DATE: November 20, 2018 ORDER A rating in excess of 20 percent for left ankle sprain and osteochondritis dissecans is denied. FINDING OF FACT The Veteran’s left ankle disability does not result in ankylosis or malunion of the tibia or fibula; and, she is in receipt of the maximum schedular rating for limited motion of the ankle. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for residuals of a left ankle injury have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code (DC) 5271 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2006 to January 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In her substantive appeal (on VA Form 9), the Veteran requested a Board videoconference hearing, but he failed to appear for the scheduled hearing in October 2018. She did not provide any good cause explanation for her absence or request to reschedule the hearing, therefore, her hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d). Rating in Excess of 20 Percent for Left Ankle Sprain and Osteochondritis Dissecans The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.§ 1155; 38 C.F.R. § 4.1. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. In that regard, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran is currently evaluated at the maximum schedular disability rating assignable for limited motion of the ankle. See DC 5271. A higher schedular evaluation for the ankle is only available for ankylosis of the ankle. See DC 5270-5274. Such has not been demonstrated. Notwithstanding the fact that the Veteran has retained an active range of motion of her ankle throughout the appeal period, the record also includes specific findings in November 2014 and January 2015 that there was no ankylosis. There is likewise no evidence that the Veteran experiences ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy during this period. Those diagnostic codes are, therefore, not for application. A rating in excess of 20 percent is also available under DC 5262 when there is a marked ankle disability, but only in cases where there is also malunion of the tibia or fibula. The Veteran has not submitted and the evidence of record does not demonstrate objective evidence of malunion of the tibia or fibula in the present case. To the contrary, the examinations from November 2014 and January 2015 specifically noted that there was no evidence of malunion. Therefore, a rating in excess of 20 percent is also not warranted under DC 5262. The Board has considered the competent lay statements from the Veteran describing her symptoms and their effects on her daily life. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this respect, the Board has based the decision on the objective medical evidence, which demonstrates consideration of these statements and the Veteran’s lay assertions. This evidence includes the information necessary and sufficient to rate the Veteran’s disability under the rating criteria. The Board has also considered, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). However, the Veteran is already assigned the maximum schedular evaluation under Diagnostic Code 5271. In Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims determined that if a claimant is already receiving the maximum disability rating available, it is not necessary to consider whether 38 C.F.R. § 4.40 and 4.45 are applicable. Thus, the provisions of 38 C.F.R. §§ 4.40 and 4.45 and DeLuca, supra, are not applicable to the Veteran’s current claim. Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent. There is also no basis for a staged rating of the Veteran’s left ankle disability as it remained relatively consistent throughout the appeal period (see Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007)), and the claim for a higher rating must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of a higher rating, that doctrine is not for application. See (CONTINUED ON NEXT PAGE) 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel