Citation Nr: 0908345 Decision Date: 03/06/09 Archive Date: 03/12/09 DOCKET NO. 06-03 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for post-traumatic arthritis of the left ankle. 2. Entitlement to a disability rating in excess of 20 percent for post-traumatic arthritis of the right ankle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Gina E. Fenice, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1983 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. FINDINGS OF FACT 1. The Veteran's post-traumatic arthritis of the left ankle is manifested by marked limitation of motion; ankylosis of the ankle is not present. 2. The Veteran's post-traumatic arthritis of the right ankle is manifested by marked limitation of motion; ankylosis of the ankle is not present. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent, but not higher, for post-traumatic arthritis of the left ankle have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010, 5270, 5271 (2008). 2. The criteria for a rating in excess of 20 percent for post-traumatic arthritis of the right ankle have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010, 5270, 5271 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2008), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability, the notice letter must provide at least general notice of that requirement. The notice letter must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In the case at hand, the record reflects that the originating agency provided the Veteran with VCAA notice, by letters mailed in June 2004 and January 2008. They informed the Veteran that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disabilities and the effect that worsening has on his employment and daily life. They provided appropriate notice with respect to the effective-date element of the claims. They also included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disabilities on the Veteran's employment, and statements from persons concerning their observations of how the disabilities have affected the Veteran. They also informed the Veteran of the assistance that VA would provide to obtain evidence on his behalf. This is not a case in which a noticeable worsening or increase in severity of the disabilities would not establish the Veteran's entitlement to increased ratings. In any event, the Veteran was provided the specific criteria for rating the disabilities in the Statement of the Case. Although the January 2008 letter was mailed after the initial adjudication of the claims, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the receipt of all pertinent evidence, the RO readjudicated the Veteran's claims in October 2007. No additional evidence was submitted or identified by the Veteran or his representative as a result of the January 2008 VCAA letter. Therefore, there is no reason to believe that any ultimate decision of the RO would have been different had complete VCAA notice been provided at an earlier time. The Board also notes that the Veteran has been afforded appropriate VA examinations and service treatment records and pertinent VA medical records have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate either claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claims were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2008). 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.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 10 percent rating is warranted for moderate limitation of motion of an ankle and a 20 percent rating is warranted for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 20 percent rating is assigned for ankylosis of the ankle in plantar flexion less than 30 degrees. A 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is assigned for 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. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2008) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2007). See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2008) 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 right and left ankle disabilities. 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. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran was granted service connection for post-traumatic arthritis of both ankles in a July 1993 rating decision. 10 percent and 20 percent disability ratings were assigned for the left and right ankles, respectively. These disability evaluations were maintained in a September 1997 rating decision. A pre-operative report from Dr. Gerd Beumer explains that the Veteran suffers from an ankle condition after a Weber C fracture in 1989, with already removed plate osteosynthesis and an already destructive post-traumatic arthrosis and a considerable functional deficit in the OSG. An operation report indicates that the Veteran underwent an exophytic arthrosis-arthroscopy, joint debridement with multivac- controlled synovecotomy, meniscoid resection, tibia and chondro-plastic surgery of the upper right ankle in January 2004. The Veteran was granted a temporary total rating for convalescence from January 6, 2004, through March 2004, as a result of the foregoing surgery. The Veteran submitted a claim for an increased rating for both ankles in April 2004. He alleges that his bilateral ankle condition has deteriorated, particularly since his right ankle surgery in January 2004. The Veteran was afforded a VA fee-basis examination in July 2006. An MRI of the left ankle revealed joint space narrowing, a free-lying inner bone apex with pseudo arthrosis, ossicles below the malleolus, fissured lateral ankle joint recess, and beginning ventral tibia contour osteophyte. An X-ray study of the right ankle showed the beginning of a deformed OSG-arthrosis with calcification of the syndesmosis, big, multiple ossicle formation under the inner bone apex, long bone fragment from the dorsal side in the para-Achilles sliding tissue, multiple small ossicles on the height of the ventral joint part, and beginning secondary arthrosis of the USG. Range of motion testing of the right ankle revealed active extension to zero degrees, flexion to 30 degrees, pronation to 18 degrees, and supination to 18 degrees. For the left ankle, active extension was to 20 degrees, flexion was to 40 degrees, pronation was to 20 degrees, and supination was to 35 degrees. The Veteran was diagnosed with post-traumatic OSG athrosis from the right side with a high level of stress and functional limitation, and beginning OSG arthrosis on the left side. The Veteran was afforded another VA fee-basis examination in May 2007 for his bilateral ankle condition. The Veteran complained of pain, weakness, stiffness, swelling, warmth of the joint, fatigability and lack of endurance in both ankles. He claimed that he uses a cane on occasion, particularly in the morning, and he uses an electric car at work so he does not have to walk. Range of motion testing for the right ankle revealed that the Veteran's dorsiflexion was to minus 2 degrees, plantar flexion was to 21 degrees, varus angulation was to 23 degrees. The onset of pain was at resting pain to the end of the motion for each measurement. As for the left ankle, active motion testing revealed that dorsiflexion was to 0 degrees, plantar flexion was to 37 degrees, varus angulation was to 37 degrees, and valgus angulation was to 6 degrees. The onset of pain was also at the beginning of each motion, continuing to the endpoint of the motion. After repetitive motion testing, dorsiflexion of the right ankle was to zero degrees, plantar flexion was to 20 degrees, varus angulation was to 20 degrees, and valgus angulation was to zero degrees. For the left ankle, dorsiflexion was to 0 degrees after repetitive motion, with plantar flexion to 36 degrees, varus angulation to 34 degrees, and valgus angulation to 2 degrees. The Veteran's walking was symmetrical but slow and very limited because of constant, bilateral ankle/foot pain. Standing was limited to about 8 to 10 minutes because of bilateral, constant pain and additional cramping pain in the arches of the feet. There was chronic internal edema of the right ankle. The examiner also reported lateral ligament instability of the left ankle. The entire right ankle joint was painful on palpation and pressure; anterior joint space and lateral malleolus area of the left ankle was tender, with pain on pressure. There was no redness, heat, increased warmth, or abnormal movement. An MRI of the right ankle in May 2007 revealed a status post- fracture Weber-C with related postoperative changes and susceptibility artifacts in the operated area. There were marked arthritic changes in the lower part of the right ankle joint, especially medially. There was a distinct ankylosing callus bridge between the distal tibia and distal fibula. An impression of status post fracture type Weber C, dorsally with ankylosing callus, severe post-traumatic arthritis in the lower part of the ankle joint, especially in the area of the medial talus with distinct subchondral cysts and active inflammatory subchondral osteonecrosis was noted. Based on an MRI of the left ankle, the examiner noted an impression of evidence of status post anterior fibulo-talar ligament rupture, moderated arthritis of the upper and lower joint part of the left ankle, and osteophytes at the plantar fascia insertion. The examiner concluded by diagnosing the Veteran as status post operated right ankle fracture with severe post-traumatic arthritis associated with dorsal ankylosis, unstable anterior syndesmosis, and talus necrosis with edema. For the left ankle, a diagnosis of a ruptured anterior fibulo-talar ligament associated with persistent lateral joint instability and post-traumatic arthritis was assigned. Statements from the Veteran's wife, employer, and the Veteran himself indicate that the Veteran experiences daily, noticeable pain in his right and left ankles, which affects his ability to perform his job and walk or exercise. Based on the foregoing evidence, the Board has determined that the Veteran is entitled to a 20 percent rating for his left ankle disability throughout the period of this claim period. In this regard, the Board notes that although the May 2007 examination revealed that the Veteran is able to plantar flex his left ankle to 37 degrees, he experiences pain throughout the entire range of motion. Moreover, dorsiflexion was to zero degrees, with pain. Therefore, the Board is satisfied that the limitation of motion more nearly approximates marked than moderate. As set forth above, 20 percent is the maximum rating authorized under Diagnostic Code 5271 for limitation of motion. The Veteran clearly retains useful motion of his left ankle. Therefore, a rating in excess of 20 percent is not in order under Diagnostic Code 5270. Similarly, the Veteran's right ankle is currently assigned the maximum rating authorized under Diagnostic Code 5271. He clearly retains useful motion of his right ankle as well. Therefore, it does not warrant a rating in excess of 20 percent under Diagnostic Code 5270. Consideration has been given to assigning a staged rating; however, at no time during the period in question has either disability warranted more than a 20 percent rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required frequent hospitalizations for these disabilities and that the manifestations of the disabilities are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from either disability would be in excess of those contemplated by the assigned rating, to include the increased rating granted by the Board. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER An increased rating of 20 percent for post-traumatic arthritis of the left ankle is granted, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a disability rating in excess of 20 percent for post-traumatic arthritis of the right ankle is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs