Citation Nr: 20056475 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 17-54 352 DATE: August 26, 2020 ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals, trimalleolar fracture left ankle prior to February 13, 2019. 2. Entitlement to a rating in excess of 40 percent for residuals, trimalleolar fracture left ankle from February 13, 2019. ORDER Entitlement to a rating in excess of 20 percent for residuals, trimalleolar fracture left ankle prior to February 13, 2019, is denied. Entitlement to a rating in excess of 40 percent for residuals, trimalleolar fracture left ankle from February 13, 2019, is denied. FINDINGS OF FACT 1. Prior to February 13, 2019, the Veteran’s residuals, trimalleolar fracture left ankle were not manifested by ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 2. From February 13, 2019, the Veteran’s residuals, trimalleolar fracture left ankle do not require frequent hospitalizations, nor does the residuals result in severe industrial impairment such that the rating schedule does not adequately contemplate the disability. CONCLUSIONS OF LAW 1. Prior to February 13, 2019, the criteria for a disability rating in excess of 20 percent for residuals, trimalleolar fracture left ankle are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5270 (2017). 2. From February 13, 2019, the criteria for a disability rating in excess of 40 percent for residuals, trimalleolar fracture left ankle are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5270 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1987. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. When this case was previously before the Board in October 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020 the Veteran requested an informal conference with an RO decision review officer. As such, in January 2020 letter the Veteran was notified of his scheduled conference. However, the Veteran failed to appear as scheduled. As the Veteran was properly notified of the time, date, and location of his scheduled hearing and failed to appear, his hearing request is deemed withdrawn. Subsequently in a June 2020 rating decision, the disability rating for the residuals, trimalleolar fracture left ankle was increased to 40 percent effective February 13, 2019. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). Legal Criteria Initially, the Board notes that although it has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 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 military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The provisions of 38 C.F.R. § 4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups have been considered and applied under 38 C.F.R. § 4.59. DeLuca v. Brown, 6 Vet. App. 321 (1993); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Moreover, the Veteran’s flare-ups have been considered in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran’s functional loss is contemplated by the ratings assigned. With respect to disabilities of the ankle, Diagnostic Codes 5270 through 5274, set forth relevant provisions. But, the highest possible evaluation under Diagnostic Codes 5271, 5273, 5273, and 5274 is only 20 percent. As such, since the Veteran is currently seeking an evaluation higher than 20 percent, these Diagnostic Codes are not applicable. 38 C.F.R. § 4.71a , Diagnostic Codes 5271, 5273, 5273, and 5274. Diagnostic Code 5270 evaluates ankylosis of the ankle. A 30 percent rating is warranted if ankylosed in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. A 40 percent rating, highest available, is warranted if ankylosed in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2017). The Veteran filed the instant increased rating claim in January 2016, stating that his ankle had gotten worse to include increasing limited range of motion, pain, and limited ability to walk, exercise, and stand for longer periods of time. He submitted an ankles disability benefits questionnaire from the same month that showed complaints of pain to include debilitating pain while more active, causing him to stop activities such as sports. Physical examination showed plantar flexion to 35 degrees and dorsiflexion to 15 degrees. The Board notes that the ankylosis section of the examination report was not completed. The Veteran was afforded a VA-contracted examination on February 13, 2019, in which he reported ankle pain that worsened over time, that he developed arthritis requiring fusion of the ankle joint, and he had ankle stiffness. Physical examination showed plantar flexion to 5 degrees and dorsiflexion to 20 degrees. Ankylosis was noted in dorsiflexion at 90 degrees. Based on the foregoing evidence, the Board concludes that for the period prior to February 13, 2019, an evaluation in excess of 20 percent is not warranted, as there is no evidence that the Veteran’s left ankle had ankylosis. See 38 C.F.R. §§4.7, 4.71a, Diagnostic Code 5270. However, beginning February 13, 2019, the Board finds that the Veteran clearly met the criteria for a 40 percent evaluation under Diagnostic Code 5270, which requires ankylosis of the ankle either at more than 40 degrees of plantar flexion or more than 10 degrees of dorsiflexion. As indicated by the February 2019 examiner, the Veteran’s ankle is ankylosed at 90 degrees. Accordingly, a 40 percent evaluation is warranted beginning February 13, 2019. As noted above, a 40 percent rating is the highest rating available under the diagnostic code. See 38 C.F.R. §§ 4.63, 4.71a, Diagnostic Code 5270. A determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. If the Board determines that (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); 38 C.F.R. § 3.321. The Board finds that extraschedular consideration is not warranted as the evidence reflects the Veteran’s level of disability and symptomatology are contemplated by the schedular criteria. Extraschedular consideration is also not warranted because there is no evidence of any marked interference with employment or frequent periods of hospitalization. The Board notes that some interference with employment is already contemplated by the schedular criteria; thus, some impact on the Veteran’s ability to work does not rise to marked interference and does not warrant extraschedular consideration. There is no evidence of frequent hospitalizations for his ankle. Thus, referral for extraschedular consideration is inappropriate. Most significantly, the Board finds the objective medical evidence to be probative and credible in determining that the Veteran does not meet the criteria for ratings in excess of those assigned. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran’s correspondence. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, the statements do not show impairment more closely approximating the criteria for higher ratings. This claim has also been reviewed with consideration of whether staged ratings would be warranted. The evidence shows no distinct periods of time when the Veteran’s symptoms have varied to such an extent that ratings in excess of the currently assigned rating would be warranted. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.344 (2017); See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As the preponderance of the evidence is against the assignment of increased ratings, the benefit of the doubt cannot be accorded to the Veteran. Therefore, the claim is denied. 38 U.S.C. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.