Citation Nr: 1337284	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO. 12-02 632	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an increased disability rating in excess of 20 percent for a right ankle disability.


REPRESENTATION

Appellant represented by:	Walton J. McLeod, Attorney at Law


ATTORNEY FOR THE BOARD

J. L. Wolinsky Associate Counsel


INTRODUCTION

The Veteran had active military service from March 1983 to April 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran seeks an increased rating for a right ankle disability, currently rated as 20 percent disabling. The February 2011 rating decision continued the Veteran's 10 percent disability rating for his right ankle. In March 2013 the RO increased the Veteran's right ankle rating to 20 percent disabling effective June 14, 2010. As this does not represent the maximum rating available for a right ankle disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993).

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. 


FINDINGS OF FACT

1.  The Veteran's right ankle does not show signs of nonunion with loose motion, requiring a brace, nor does the Veteran have ankylosis of the right ankle.

2.  The Veteran's right ankle disability more nearly approximates malunion of the tibia and fibula with marked ankle disability.


CONCLUSION OF LAW

 The criteria for an increased rating of 30 percent, but no higher, for service connected right ankle disability have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.20, 4.27, 4.97, Diagnostic Codes 5262, 5270, 5271 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA

VA has met all statutory and regulatory notice and duty to assist provisions pursuant to the Veterans Claims Assistance Act.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The August 2010 VCAA letter satisfied VA's duty to notify. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The letter included notice regarding what information and evidence was needed for the Veteran to substantiate his claim for an increased rating for his right ankle fracture, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.   

The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records.  The Veteran's representative sent to VA, private records from the Pain Center in South Carolina, and from the Veteran's March 2011 examination with a private physician. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.   A VA examination was conducted in February 2011 as well as in December 2012 and January 2013. 38 C.F.R. § 3.159(c)(4). The examiner conducted a physical examination, reviewed the Veteran's medical history, recorded clinical findings, examined the Veteran's range of motion, discussed the Veteran's pain, and gave remarks about the Veteran. Since the examination included sufficient detail as to the current severity of the Veteran's ankle disability, the Board concludes that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 

II. Merits of the Claim

The appeal for an increased rating for right ankle disability arises from a disagreement with the rating decision continuing a 10 percent disability rating in February 2011. The RO decision to increase the Veteran to a 20 percent disability rating in March 2013 is on appeal as the RO did not provide the Veteran with a maximum benefit. See A.B. v. Brown. 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7.

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45  are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson  v. Brown, 9 Vet. App. 7  (1996). 

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

The Court has also held that in a claim of disagreement with the initial rating assigned following a grant of service connection separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2  

Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 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).

The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). In reviewing the claim for a higher rating, VA must consider which Diagnostic Code or Codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from a service-connected ankle disability, including tibia and fibula impairment (Diagnostic Code 5262), ankylosis of the ankle (Diagnostic Code 5270), and limitation of motion to the ankle (Diagnostic Code 5271). 

Under Diagnostic Code 5262, a 10 percent evaluation is assigned when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent evaluation is assigned when there is moderate knee or ankle disability; a 30 percent evaluation is assigned when there is marked knee or ankle disability; and a 40 percent evaluation is assigned when there is nonunion of the tibia and fibula with loose motion that requires a brace. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5270, a disability rating in excess of 20 percent will be warranted for an ankle disability when there is ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees, (30 percent disabling under Diagnostic Code 5270); or ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity (40 percent disabling under Diagnostic Code 5270). Ankylosis has been defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Colayong v. West, 12 Vet. App. 524, 530 (1999) (citing Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003)). 

Under Diagnostic Code 5271 a 10 percent evaluation is warranted for moderate limited motion of ankle and a 20 percent evaluation is warranted for marked limited motion of the ankle.

The Veteran underwent a VA examination for his joints (shoulder, elbow, wrist, hip, knee and ankle) in February 2011. The Veteran reported swelling in his joints with discomfort, but no pain and no subluxation was reported. The Veteran stated that he self-medicated with alcohol, and he had daily pain without flare-ups. His pain occurred when he walked a lot; he also reported that he experienced worse pain with climbing stairs, and that he could not run at all, though it did not limit his daily activities, and the Veteran had not missed work because of his pain. At the February 2011 exam the Veteran did not use a brace or crutches. Range of motion was reported for the right ankle as dorsiflexion to 5 degrees, and 38 degrees flexion with suboptimal effort. Ankylosis and arthritis was not noted.

VA received an Ankle Disability Benefits Questionnaire in December 2012 which discussed the Veteran's ankle disability. The Veteran reported flare-ups that give him difficulty walking. The Veteran had range of motion for plantar extension with his right ankle to 35 degrees, with painful motion beginning at 20 degrees. The Veteran had right ankle dorsiflexion to 0 degrees, with pain at 0 degrees. Due to the pain the Veteran was unable to perform repetitive testing and had additional range of motion limitation after repetitive use. The Veteran has arthritis of his right ankle, states that he uses a cane and is unable to stand for extended periods of time. Shin splits were also reported in his medical history. 

The Veteran did not have laxity compared to his other ankle, and had a score of 5 out of 5 for muscle strength. The Veteran did not have ankylosis of the ankle, subtalar and or tarsal joint. The Veteran reported no other physical findings, complications, conditions, signs or symptoms related to this right ankle disability. The March 2013 Ankle Disability Benefits Questionnaire did not report any nonunion, or malunion of the tibia and fibula.

Additionally associated with the claims file is an Ankle Conditions Disability Benefits Questionnaire from January 2013. The medical history of the Veteran stated he had right ankle surgery in 1987, and that he experienced flare-ups which impacted his ability to walk or stand for long periods. The range of motion testing revealed ankle plantar flexion to 30 degrees, with painful motion beginning at 20 degrees. The Veteran's right ankle dorsiflexion showed extension to 5 degrees, with pain beginning at 5 degrees. The Veteran was able to perform repetitive-use testing after 3 repetitions for his left and right ankle with no change in range of motion. During range of motion testing, pain and swelling was reported by the Veteran. The Veteran's ankle condition impacts his ability to work due to pain and swelling which results in difficulty walking or standing for long periods, and the Veteran also reported trouble with stairs.  Muscle strength for the Veteran was 5 out of 5 for his right ankle for both plantar flexion and dorsiflexion. Ankylosis was not reported, nor was malunion.

The record also contains private medical records of the Veteran.  In March 2011, the Veteran visited Dr. Z.C. DC with complaints of right ankle pain.  The Doctor diagnosed the Veteran with pain in his ankle/foot joint.  In July 2011 the Veteran saw another private examiner.  The examiner reported that the Veteran had an ankle disorder with pain.  The doctor stated that the Veteran is having pain in his right leg, and that the Veteran "has a long [history which] seems to be related to his trauma in the military... certainly with the fractures obtained while parachuting and [the] impact on his legs and back."  Private medical records of an X-Ray report from January 2013 are also part of the claims folder.  The report found that both the left and right tibia-fibula were "osseous structures and soft tissues are normal.  There is no fracture or dislocation.  There is no degenerative disease."  The exam impressions were normal left tibia-fibula, and normal right tibia-fibula.    

The Board notes that the Veteran is currently assigned a 20 percent rating for the right ankle under Diagnostic Code 5271. This is the highest rating possible for Diagnostic Code 5271. Higher possible ratings exist under Diagnostic Code 5262 and 5270 and thus merit discussion. The Veteran does qualify for a higher rating under Diagnostic Code 5262 because evidence exists that the Veteran has impairment suggestive of malunion of the tibia and fibula with marked ankle disability. However, the Veteran does not qualify for a higher rating under Diagnostic Code 5270 as there is no evidence of ankle ankylosis.

The evidence shows that the Veteran had right ankle surgery in 1987 which required 2 screws placed in his ankle, and there is currently medical evidence that shows impairment suggestive of malunion of the Veteran's ankle.  Notwithstanding the findings shown on the January 2013 x-ray, the findings from the more invasive May 2012 MRI showed that the Veteran had "irregularity of the tib-fib syndesmosis suggestive of prior syndesomtic injury."  The irregularity noted by the MRI and the Veteran's complaints, including complaints of pain, and trouble walking and standing, shows that the Veteran's functional impairment more nearly approximates a marked ankle disability thereby warranting a 30 percent rating under Diagnostic Code 5262.  The Veteran has stated that he has extreme pain, and he has trouble walking, running and going up stairs.  The Veteran has also stated that he uses a cane, and has flare-ups of pain in his ankle.  Range of motion testing also shows limitations to his right ankle, as well as pain on repetitive motion, weakness on repetitive motion and additional range of motion loss after repetitive use according to the December 2012 examination.  All of the Veteran's reported symptoms are noted, and considered to be reflective of disability that more nearly approximates a marked ankle disability under Diagnostic Code 5262.  DeLuca.  The MRI findings do not however show nonunion of the tibia and fibula with loose motion; therefore, a higher 40 percent rating is not warranted for the Veteran's disability under Diagnostic Code 5262.  While the Veteran has complained of difficulty, standing, walking and climbing stairs he does not have complete lack of mobility in his ankle. The medical evidence from the Veteran's February 2011 VA examination and from his Ankle Disability Questionnaires clearly indicate that the Veteran does not have ankylosis of his right ankle. Therefore, without ankylosis of the ankle the Veteran does not qualify for a disability rating under Diagnostic Code 5270.  There is also no evidence of any malunion of the os cacis or astragalus, and no evidence of astragalectomy, so evaluation under Diagnostic Code 5273 or 5274 is not warranted. 

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)  (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected ankle disability is inadequate.  The Veteran's symptoms, including pain, trouble walking, running, and standing, and flare-ups, and the Veteran's decreased range of motion are all adequately contemplated by the rating criteria under Diagnostic Codes 5262, 5270, and 5271.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In Rice v. Shinseki, the Court held that a claim for TDIU (total disability rating for compensation based on individual unemployability) is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability). 

The record shows that the Veteran's ankle condition impacts his ability to work because he cannot stand for an extended period of time. The Veteran also claimed that his ability to work is diminished due to pain and swelling. However, there is a lack of evidence which shows that the Veteran is unemployable, or is unemployed because of his ankle injury. There is also no claim or statement from the Veteran or his representative which contends that his ankle has prevented him from finding substantial gainful employment. The February 2011 VA examination additionally states that the Veteran had not missed work because of his joint pain. Accordingly, the Board finds that a claim for total disability rating for compensation based on individual unemployability is not raised by the record.

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ORDER

An increased rating of 30 percent for right ankle disability is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
TANYA A. SMITH
 Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs