Citation Nr: 21020968 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-28 932 DATE: April 8, 2021 ORDER A 30 percent rating, but no more, for status/post crush injury to the left ankle with open reduction and internal fixation is granted, subject to the criteria governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from October 1979 to September 1990. 2. A left ankle disability has been manifested by constant pain and ankylosis in dorsiflexion between zero and five degrees throughout the appeal period. CONCLUSION OF LAW The criteria for a 30 percent rating, but no higher, for status/post crush injury to the left ankle with open reduction and internal have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5271 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In December 2020 the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s left ankle disability is currently rated at 20 percent under DC 5271, the maximum schedular rating under this diagnostic code. In order for a higher rating to be warranted under DC 5270, the evidence must show: • ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees (30 percent). Turning to the medical evidence, an October 2016 private treatment record noted advance ankle arthritis. On examination, dorsiflexion of the left ankle was to zero degrees. A May 2017 VA examination report noted that the Veteran reported buckling and constant ankle pain with movement. With flare-ups he reported difficulty walking. Flare-ups occur two to three times a month. He rated his pain during a flare-up at 8/10. Pain on a daily basis was noted to be 6/10 or 7/10. On examination, range of motion testing for the left ankle revealed dorsiflexion to 5 degrees and plantar flexion to 10 degrees without pain. There was pain with weight bearing but no crepitus. Strength testing was 2/5. Additional factors contributing to the ankle disability were noted to include less movement than normal due to ankylosis, adhesions, disturbances of locomotion, and interference with standing. The Veteran was noted to regularly use a cane. A private treatment record from April 2018 stated that the Veteran had left ankle spondylosis. It was indicated that his left ankle was severely arthritic and frozen from previous trauma. This was noted to cause chronic daily pain and limit his ability to ambulate, stand or squat. Another April 2018 private treatment record noted a diagnosis of left ankle ankylosis. The July 2019 VA examiner found that the Veteran had ankle swelling and constant ankle pain. The Veteran indicated that his left ankle did not bend at all and was frozen in place. He reported that the ankle pain was worse with cold damp weather, and prolonged standing or walking. The examiner noted that a May 2018 treatment record reflected a complete loss of inversion, eversion, adduction, and abduction as well as dorsiflexion and plantar flexion; however, it was also noted that an April 2019 treatment record noted normal gait. The Veteran reported limited range of motion at all times. On examination, left ankle dorsiflexion was to 0 degrees and plantar flexion was to 5 degrees. There was pain on all ranges of motion. Gait was abnormal. Strength was 3/5. Additional contributing factors to the left ankle disability included less movement than normal due to ankylosis, adhesions, disturbance of locomotion, and interference with standing. It was noted that the Veteran regularly used a cane. A December 2020 private Disability Benefits Questionnaire (DBQ) indicated that the Veteran reported left ankle flare-ups that consisted of increased pain. He described functional loss in terms of loss of inversion, eversion, adduction, abduction, dorsiflexion, and plantar flexion. On examination, left ankle plantar flexion was to 30 degrees and dorsiflexion was to 0 degrees. Contributing factors to the disability were less movement than normal, weakened movement, excess fatigability, incoordination, pain swelling, instability of station, disturbance of locomotion, and interference with standing/sitting. The clinician noted that the findings in the DBQ were present since October 2016. In a December 2020 letter, a private physician (Dr. Z.) opined that based on review of the Veteran’s medical history and personal evaluation, the Veteran’s left ankle condition with dorsiflexion to 0 degrees has been present since at least October 2016. Based on the above, a 30 percent rating is warranted under DC 5270 based upon ankylosis in dorsiflexion between 0 degrees and 10 degrees. As such, the appeal is granted to this extent. However, a rating in excess of 30 percent is not warranted. In this regard, the evidence does not show nonunion of the tibia and fibula, with loose motion, requiring a brace (which would warrant a 40 percent rating under DC 5262). In addition, there is no evidence of ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity (which would warrant a 40 percent rating under DC 5270). The Board notes that there is X-ray evidence of right ankle arthritis; however, degenerative arthritis is rated based on limitation of motion. As the Veteran’s 30 percent rating under DC 5270 is based in part on limitation of ankle motion, a second rating for degenerative arthritis would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Therefore, a separate rating for left ankle degenerative arthritis is not warranted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED