Citation Nr: 1749137	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-28 027	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for a right ankle disability.


REPRESENTATION

Appellant represented by:	American Legion


ATTORNEY FOR THE BOARD

S. Morrad, Associate Counsel






INTRODUCTION

The Veteran served on active duty from April 1986 to January 1993 and from May 2006 to January 2007, including service in the Persian Gulf.  He had additional service in the Georgia Air Force National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  Jurisdiction of this appeal has since been transferred to the RO in Roanoke, Virginia.

This matter was previously before the Board in September 2015, at which time the Board denied the claim for a higher initial rating for a right ankle disability.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacating and remanding the portion of the September 2015 Board decision which denied a higher disability rating for the right ankle disability, for compliance with the instructions provided in the JMPR. 

In April 2017, the Board remanded this matter for further development in order to comply with the JMPR.  The case is again before the Board for appellate review.

This appeal was processed using the VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDING OF FACT

Throughout the appeal, the Veteran's right ankle disability has been manifested by painful motion, tenderness, and swelling with complaints of pain and weakness but with no signs of instability or limited range of motion, which more closely approximate moderate limitation of motion.

CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for a right ankle disability have not been met.  38 C.F.R. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). 

The Veteran's claim for a higher rating for a right ankle disability arises from a disagreement with the initial disability rating that was assigned following the grant of service connection.  Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With respect to the duty to assist, the Veteran's service treatment records, VA treatment records, and private treatment records have been associated with his claims file.  The Veteran has not identified any additional outstanding records that VA should seek to obtain on his behalf.  The Veteran was provided with a VA ankle examination in June 2017 that addressed the pertinent criteria for rating ankle disabilities.  The examination report is adequate because it describes the disabilities in sufficient detail so that the Board's evaluation is a fully informed one.  Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007).  The Veteran has not reported, nor does the record show, that his service-connected right ankle disability has worsened in severity since the most recent examination in June 2017.  As such, a new examination is not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

Thus, VA's duties to notify and assist have been met.  

Rules and Regulations

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  38 C.F.R. § 4.1.  

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

Although the evaluation of a service-connected disability requires a review of a Veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings.  Fenderson v. West, 12 Vet. App. 119 (1999). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14.

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected ankle disabilities.

Under DC 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  

Under DC 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating.  Ankylosis of the ankle in plantar flexion between 30 degrees and 40 degrees, or in dorsiflexion between 0 and 10 degrees warrants 30 percent rating.  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 warrants a 40 percent rating.

The Veteran's right ankle disability is currently rated as 10 percent disabling under DC 5271.  That code addresses limited motion of the ankle, providing a 10 percent rating for moderate limitation of motion, and a 20 percent rating for marked limitation of motion.

Under DC 5272, ankylosis of the subastragalar or tarsal joint in good weight-bearing position warrants a 10 percent rating. Ankylosis of the subastragalar or tarsal joint in poor weight-bearing position warrants a 20 percent rating.  

Under DC 5273, a malunion of the os calcis or astragalus with moderate deformity warrants a 10 percent rating. A malunion of the os calcis or astragalus with marked deformity warrants a 20 percent rating.  

Under DC 5274, an astragalectomy warrants a 20 percent rating.

Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees.  38 C.F.R. § 4.71a, Plate II.


Factual Background

The evidence of record include a May 2007 VA treatment record, which reveals objective evidence of right ankle swelling, pain with range of motion, and a 0.5 centimeter (cm) osteochondral defect.  The Veteran reported that stretching provided temporary relief.  

A July 2009 private treatment record reveals subtle swelling of the right ankle with mild pain on range of motion.  X-rays showed no signs of any significant arthritis.  Surgical debridement of the osteochondral defect was recommended.  However, there is no indication in the record that the Veteran underwent surgical debridement.  

A November 2009 VA treatment record reveals ankle weakness and pain to palpation along the anterior right ankle.  No signs of instability were noted.  

The Veteran received a steroid injection in March 2011.

When the Veteran was examined by VA in August 2012, he Veteran reported flare-ups, pain, swelling, weakness, and stiffness.  He also reported a history of Achilles tendonitis.  X-rays of the right ankle were normal.  Physical examination revealed dorsiflexion to 20 degrees, with objective evidence of pain and plantar flexion to 45 degrees, with objective evidence of pain.  There was no evidence of additional limitation in range of motion following repetitive-use testing.  Further, there was no evidence of functional loss and/or functional impairment of the right ankle.  The examiner noted evidence of localized tenderness or pain on palpation of the ankle.  Muscle strength testing and joint stability were normal.  No ankylosis of the ankle, subtalar, or tarsal joint was found.  The Veteran reported symptoms of Achilles tendonitis and Achilles tendon rupture bilaterally.   The examiner noted limitations on standing, ambulating, and running impacted the Veteran's ability to work.  The diagnosis was chronic right ankle sprain. 

Most recently, the Veteran was provided a VA examination in June 2017.  The Veteran reported flare ups and functional loss with walking in soft beach sand and bending a lot at work.  The Veteran's range of motion for his right ankle was found to be normal, with dorsiflexion to 20 degrees and plantar flexion to 45 degrees in the right ankle.  Pain with dorsiflexion was noted on the exam, causing functional loss.  The range of motion was also normal in the left ankle, with no pain noted on the exam.  No additional loss of function or range of motion was found after three repetitions in either the right or left ankle.  Pain, weakness, fatigability, and incoordination were not found to significantly limit functional ability with flare-ups for both ankles.  Muscle strength testing was normal.  No ankylosis or joint instability was found.  No shin splints, Achilles tendonitis, Achilles tendon rapture, malunion of os calcis or astragalus were found.  The Veteran did not have an astragalectomy.  The examiner noted that the Veteran demonstrated toe walking, heel toe walking, squatting, toe raises repeatedly, single leg balance right and left, and lateral lunges without reported pain or signs of instability.  The VA examiner diagnosed the Veteran with bursitis, right ankle sprain with osteochondral lesion, talar dome, and tear of peroneus brevis tendon with minimal functional limitation. The examiner noted that range of motion active and passive were normal, with no pain.  The Veteran reported right ankle pain after squatting at work, which he was able to demonstrate at the exam.  After squatting, he reported mild pains in his lateral right ankle, showing mild pain signs (no grimacing, no alteration of gait afterward).  The reported pain occurred at 35 degrees dorsiflexion in a squatting/weight bearing position.  On non-weight bearing active range of motion, no pain was reported and no pain signs were observed.  Regarding functional loss, the Veteran reported that today was a good day for his right ankle.  He reported that after a long day at work his right ankle feels worse.  He reported flare ups in an unpredictable pattern.  He reported that during flare ups he has the same range of motion but his pain is much worse than usual.

Analysis

After consideration of all of the evidence of record, including the medical evidence and the lay evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's right ankle symptomatology more closely approximates the criteria for a 10 percent evaluation.  Here, the record evidence reveals that the Veteran had swelling and pain on range of motion of the right ankle in May 2007 and July 2009, and that he had ankle weakness and pain to palpation in November 2009, but that same evidence does not indicate that the right ankle motion was limited due to pain, and showed no signs of instability of the right ankle joint.  Notably, when the Veteran was examined by VA in August 2012, and most recently in June 2017, he demonstrated normal dorsiflexion to 20 degrees and normal plantar flexion to 45 degrees in the right ankle.  Although objective evidence of pain, localized tenderness, and pain on palpation were detected on VA examination in June 2012, the Veteran nonetheless showed a normal right ankle motion with no evidence of either additional limitation in range of motion on repetitive testing or functional impairment of the right ankle.  In the same way, the Veteran reported pain at 35 degrees dorsiflexion in a squatting, weight-bearing position at the June 2017 VA examination.

Because the Veteran has not had signs or symptoms that would be tantamount to marked limitation of motion of the right ankle throughout the appeal period, the Board finds the level of functional impairment more nearly approximates a level of impairment consistent with moderate limitation of motion.  Taking into consideration the provisions of 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59 and DeLuca, supra, such clinical evidence of painful motion, tenderness, and swelling with complaints of pain and weakness not inhibiting motion warrants a finding of moderate impairment throughout the appeal period.  See 38 C.F.R. § 4.71a, Diagnostic Code 5271.  The Board finds, therefore, that a rating in excess of 10 percent is not warranted for the demonstrated functional impairment in the right ankle pursuant to Diagnostic Code 5271, as well as 38 C.F.R. §§ 4.40, 4.45 and 4.59.

Additionally, as the record evidence is not clinically characteristic of ankylosis, malunion of os calcis or astragalus, or astragalectomy, as shown by VA examination in August 2012 and June 2017, a higher rating under 38 C.F.R. § 4.71a, DC 5270, 5272, 5273, or 5274 is not warranted.





ORDER

Entitlement to an initial disability rating in excess of 10 percent for a right ankle disability is denied.




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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