BVA9504534 DOCKET NO. 93-08 885 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased evaluation for chronic left ankle sprain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran-appellant had active military service with the Army Reserve National Guard from June 1987 to August 1987. This appeal arose subsequent to a November 1992 rating decision of the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his left ankle disability has gotten worse, that the ankle is constantly swelling and turning, that he is unable to stand for long periods of time, and that he has to retrain himself for a "sit-down" job because he is unable to work on his feet. He states that he needs a disability rating of at least 20 percent to get VA assistance to go to college. He feels that he should be properly compensated for his lifetime injury. It is asked that reasonable doubt be resolved in the veteran's favor. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an increased rating for the left ankle disability. FINDING OF FACT Chronic left ankle sprain is manifested by pain and no more than moderate limitation of motion. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for a chronic left ankle sprain have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321(b)(1), and Part 4, § § 4.40, 4.71, Diagnostic Code 5271 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has submitted a well-grounded claim. As such, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. Murphy v. Derwinski, 1 Vet.App. 78, 81- 82 (1990) and Proscelle v. Derwinski, 2 Vet.App. 629 (1992); 38 U.S.C.A. § 5107(a). In this case, the record contains service medical records, VA outpatient records and report of VA examination conducted during the current appeal period. Upon review of the entire record, the Board concludes that all relevant facts have been developed and that no further duty to assist the veteran is required. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although the recorded history of a disability is to be reviewed in order to make a more accurate evaluation, 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55-58 (1994). For this reason, in order to evaluate the disability in relation to its history, the Board briefly summarizes the recorded history below: Factual Background In a December 1987 rating decision, the RO granted service connection for chronic left ankle sprain and assigned a 10 percent rating under Diagnostic Code 5271 (limited motion of the ankle). Except for a four month period in 1989, the disability rating has remained at 10 percent. The grant of service connection was based on the service medical records, including a Medical Board Report. The Medical Board Report discloses that after the veteran injured his left ankle, he had 5 to 6 sprains and was followed in the Podiatry Clinic for a painful left ankle. There was no real improvement with various therapies. The pertinent findings were tenderness over the anterior talofibular ligament and pain on plantar flexion and inversion of the left foot. He was then discharged from service because of chronic left ankle sprain. On initial VA examination after discharge in September 1988, the left ankle was normal without heat, redness, tenderness, swelling or abnormal motion. X-rays revealed no significant abnormality. The diagnosis was history of symptomatic left ankle sprain. In May 1989, the veteran was seen by J.C. Ogle, D.O., for complaints of pain on the anterior surface of the ankle joint. He gave a history of injuring his ankle again four or five weeks earlier. X-rays of the left ankle were negative. The diagnosis was chronic left ankle sprain with re-injury four to five weeks ago. On VA examination in June 1989, the pertinent findings were: the veteran limped on his left foot, he could walk on his toes and heels with pain, he could not duck walk because of pain, and he could not walk on the inside of the feet or tandem walk. Plantar flexion to 50 degrees bilaterally and dorsiflexion to 10 degrees bilaterally caused pain to the left ankle. X-rays revealed increased soft tissue swelling over the ankle. On VA examination in July 1991, the veteran complained of pain in the ankle after walking one or two miles. History included left ankle arthroscopy and synovitis. Plantar flexion was to 45 degrees and dorsiflexion was to 0 degrees. He could walk on his toes, heels, duck walk, walk on the inside and outside of the feet and tandem walk. X-rays revealed a well maintained ankle mortis. The impression was chronic left ankle sprain, postoperative. In August 1992, the veteran applied for an increased rating for his service connected left ankle disability. Current Status The evidence of record pertaining to the present claim consists of the following: Reports of VA outpatient treatment disclose the following: in November 1990, the veteran had left ankle arthroscopy with synovectomy; in August 1991, when he was seen for left ankle pain, he had full range of motion with tenderness with inversion; he had a similar complaint in November 1991; in January 1992, a bone scan revealed increased uptake in the left tibiotalar and talocalcaneal joints consistent with ligamentous injury; in February 1992, he had pain at extreme of dorsiflexion and plantar flexion, some anterior medial tenderness and normal X-rays with the impression being history of synovitis of the left ankle; and in April 1992, he had stability to valgus stress, mild instability with varus stress, and a range of motion of 20 degrees dorsiflexion and 30 degrees plantar flexion. Medication and physical therapy were to continue. On VA examination in October 1992, the veteran complained of significant recurrent pain and swelling of the anterior lateral aspect of the ankle joint when walking or standing for one to one and a half hours. He indicated that he was a student retraining for work that required sitting, that he took medication with some relief of symptoms and that he did not currently have symptoms of instability. Examination revealed minimal hypertrophy of the left ankle with a full range of motion both actively and passively. There was pain with full dorsiflexion and internal rotational movement. No abnormality or symptoms of instability of the left ankle were found. X-rays revealed swelling of the medial and lateral malleolus. The impression was history of old sprain, left ankle, with postoperative synovectomy, symptomatic. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment in earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). The left ankle is presently rated as 10 percent disabling under Diagnostic Code 5271 equating to moderate limitation of motion of the ankle. A 20 percent rating under the same diagnostic code requires marked limitation of motion of the ankle. On VA examination in October 1992, there was full, active and passive range of motion of the left ankle and no instability. Minimal hypertrophy was consistent with the X-ray finding of swelling, however, range of motion of the ankle, the major criterion for evaluating the disability, was not impaired. As for pain, pain is a factor in evaluating disability of the musculoskeletal system. 38 C.F.R. § 4.40 (1994). In this case, the pain alone does not elevate the disability to the level of marked impairment in the absence of pathology that limits range of motion of the ankle. After reviewing the disability in relation to its history and considering the present disability picture, the Board is unable to conclude that the current symptomatology equates to or approximates the criteria for a 20 percent rating under Diagnostic Code 5271. As for an extra-schedular rating, while the veteran contends that he is unable to work on his feet and he is retraining for a sit down job, no evidence to support his claim has been offered or alluded to. He has good strength and muscle development in the left leg and there are no skeletal changes to explain his complaints of constant ankle pain. As the disability here does not present such an exceptional or unusual picture with such related factors as marked interference with employment (not shown) or frequent periods of hospitalization, the regular schedular standards are not rendered impractical. 38 C.F.R. § 3.321 (b)(1) (1994). The veteran's contention that he needs a 20 percent rating for educational assistance is not totally accurate. Percentage disability ratings are factors in establishing basic entitlement to a VA rehabilitation program, not educational assistance to college. 38 U.S.C.A. § § 3102, 3461 (West 1991). As the Board concludes that the preponderance of the evidence is against an allowance of the veteran's claim for increased compensation the reasonable doubt doctrine does not apply. 38 C.F.R. 3.102 (1994). ORDER Entitlement to an increased evaluation for chronic left ankle sprain is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.