Citation Nr: 1808600 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 09-37 239A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability rating in excess of 10 percent for a right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from April 1967 through April 1970 and from January 1971 through February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. Testimony concerning the issue on appeal was received from the Veteran during a July 2012 Board hearing. A transcript of that testimony is associated with the record. This matter was remanded previously by the Board, most recently in June 2017, for further development to include arranging the Veteran to undergo a VA examination of his ankle. That development has been performed and the matter returns to the Board for de novo review. A February 2017 letter notified the Veteran that the Veteran's Law Judge who presided over the July 2012 Board hearing was no longer employed at the Board. Although the Veteran was advised of his right to request a new hearing before a sitting Board member, no response to the letter was received from the Veteran. Indeed, neither he nor his representative has requested a new hearing. The issues of the Veteran's entitlement to service connection for headaches; increased disability rating for residuals associated with chronic right mastoiditis, to include headaches, rated currently as 10 percent disabling; a compensable disability rating for hemorrhoids; and, petitions to reopen previous claims for service connection for a low back disorder and for a left hip disorder have been raised by the record in a December 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT For all periods relevant to this appeal, the Veteran's right ankle disability has been manifested by pain, instability, recurring sprains, and moderate loss of motion that includes painless dorsiflexion to no less than 10 degrees and plantar flexion to no less than 20 degrees. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right ankle disability are neither met nor approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, VA's duty to notify was satisfied by a July 2008 letter to the Veteran. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also met its duty to assist the Veteran by obtaining all identified and available treatment records and evidence. Those records are associated with the claims file. Appropriate VA examinations of the Veteran's right ankle were conducted in May 2007, August 2008, July 2010, October 2012, and August 2017. II. Analysis The Veteran asserts on appeal that he is entitled to a disability rating in excess of 10 percent for his service-connected right ankle disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two ratings applies, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7 (2017). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where entitlement to compensation already has been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Different disability ratings may be assigned for separate periods of time depending on the facts shown in the evidence, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3 (2017). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's disability has been rated in accordance with the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5271, which are the criteria used for disabilities due to limited motion of the ankle joint. Under those criteria, a 10 percent disability rating is assigned where the evidence shows moderate loss of ankle motion. A 20 percent disability rating is assigned where there is evidence of marked loss of ankle motion. The regulations define normal ankle motion as being characterized by dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. Terms such as "mild," "moderate," and "marked" are not defined in the regulations or the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. In support of his claim, the Veteran has reported in his claims submissions, his December 2011 DRO hearing, and his July 2012 Board hearing that he experiences ongoing symptoms of pain, edema, popping, and swelling in his ankles. He states also that his right ankle is prone to twisting and reinjury. A VA examination conducted of the Veteran's right ankle in May 2007 documents essentially the same symptoms reported by the Veteran in his claims submissions and hearing testimony. Notably, he denied experiencing any functional impairment due to his ankle, other than the inability to wear boots. An examination of the ankle at that time showed tenderness over the right ankle. Motion in the ankle joint included dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Repetitive motion of the ankle was not productive of additional loss of motion or other loss of function in the ankle. X-rays of the ankle revealed soft tissue swelling but no evidence of acute bony fractures or dislocations. Treatment records from the appeal period at issue show that the Veteran has treated his right ankle only sporadically. He was seen for his right ankle at Tulsa Bone & Joint by Dr. S.J.D. for only one occasion in January 2008. An examination conducted at that time of the Veteran's ankle revealed "good motion, with all ligaments stable." Although the Veteran's right leg was noted for being 1.5 centimeters shorter than his left leg, the record does not reflect any opinion that the leg length discrepancy was attributable to the Veteran's right ankle condition. During an August 2008 VA examination, the Veteran reported that he was having episodes of locking in his right ankle joint. Still, he reported that he was able to walk distances of up to one mile without pain and was sometimes able to walk up to three miles. On examination, the Veteran demonstrated a normal gait. Right ankle motion at that time consisted of painless dorsiflexion to 12 degrees and plantar flexion to 45 degrees. No evidence of swelling, edema, effusion, weakness, instability, or tendon abnormality was observed. Mild tenderness was noted over the medial aspect. Contrary to Dr. S.J.D.'s previous finding, the Veteran's leg lengths were even at 97.5 centimeters. X-rays of the right ankle showed findings that were consistent with mild degenerative changes. The examiner opined that the Veteran's right ankle disability did not have any significant effects on the Veteran's occupational functioning. Regarding the Veteran's activities of living, the examiner opined that the Veteran's right ankle disability had no effect on chores, traveling, feeding, bathing, dressing, toileting, and grooming; mild effects on shopping, exercise, and recreation; and, severe effects on the Veteran's ability to play sports. The examiner noted also that the disability impacted the Veteran's ability to drive, however, did not comment on the extent to which it was impaired. In November 2009, the Veteran sought treatment for his right ankle at Marshall Chiropractic & Wellness Center. At that time, he reported ongoing pain and demonstrated dorsiflexion to 10 degrees and plantar flexion to 25 degrees. During VA examination of the right ankle in July 2010, the Veteran continued to demonstrate a normal gait. A physical examination of the ankle joint revealed tenderness, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding, malalignment, or drainage. Right ankle motion included dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Repetitive motion of the joint was not productive of further loss of function. Again, right ankle x-rays showed no evidence of an acute bony abnormality. The Veteran was afforded another VA examination of his right ankle in October 2012. At that time, he reported that he had been wearing a brace on his ankle. Regarding function, he stated that he had worked primarily sedentary jobs in the past and therefore his ankle disability did not bother him much in his occupational functioning. In relation to his activities of daily living, he reported only that he felt aching in the ankle when he mowed his lawn or engaged in other similar activity. During the examination, the Veteran demonstrated right ankle motion that included plantar flexion to 30 degrees with pain beginning at 20 degrees and dorsiflexion to 20 degrees with pain beginning from 10 degrees. Repetitive motion did not result in any further functional loss. No ankylosis was observed. Mild medial laxity was noted during inversion and eversion stress of the ankle. Muscle strength was normal. The Veteran's gait was normal. X-rays of the ankle revealed arthritis. Pursuant to the Board's most recent remand, the Veteran's right ankle was evaluated again by a VA examiner in August 2017. Passive and active motion in both ankle joints was full to 20 degrees of dorsiflexion and 45 degrees of plantar flexion. Once again, repetitive motion was not productive of any further loss of function. No evidence of ankylosis was seen. Also, no evidence of pain was observed during the examination, including during weightbearing. Muscle strength in the ankle joint was full and normal. Overall, the evidence shows that the Veteran's right ankle disability has been manifested by pain, swelling, mild laxity of the ankle joint, recurring tendency to twist and reinjure his ankle, and some lost motion to no less than 10 degrees of pain free dorsiflexion and 20 degrees of plantar flexion. The Board concludes that the extent of decreased right ankle motion shown in the evidence is consistent with moderate loss of motion, particularly given the extent of occupational and daily functioning retained by the Veteran throughout the course of the appeal period. To the extent that the evidence shows chronic symptoms of pain and swelling, such symptoms appear to be addressed adequately by the assigned disability rating. The Board is mindful of the provisions under 38 C.F.R. § 3.321, which provide for consideration of the assignment of an extra-schedular disability rating for limited cases where the evidence shows an exceptional disability that is contemplated adequately by the rating criteria. Nonetheless, such consideration is not warranted by the facts of this case. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). The Board observes that other rating criteria for ankle disabilities are available under DCs 5270, 5272, 5273, and 5274. In the absence of any findings of ankylosis in the Veteran's ankle, evidence of malunion of the os calcis or astragalus, or surgery for an astragalectomy those criteria are not applicable to this case. The criteria for a disability rating in excess of 10 percent for the Veteran's right ankle disability are not met. This appeal is denied. ORDER A disability rating in excess of 10 percent for a right ankle disability is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs