Citation Nr: 0001636 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-27 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased evaluation for the post-operative residuals of a right ankle disorder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD William J. Jefferson, Counsel INTRODUCTION The veteran had active service from January to July 1990. This case was remanded by the Board in June 1999 to afford the veteran a personal hearing at the RO. In November 1999 a personal hearing conducted by the undersigned Board member was held at the RO. FINDING OF FACT The post-operative residuals of a right ankle disorder result in pain and limitation of motion of the ankle, but are not productive of ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the post-operative residuals of a right ankle disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5003, 5270, 5271 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION An allegation of increased disability generally establishes a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The veteran's service connected right ankle disorder has been examined. The VA has fulfilled its duty to assist the veteran in the development of the facts pertinent to his claim for an increased evaluation. 38 U.S.C.A. § 5107(a). Factual Background The veteran sustained a twisting injury to the right ankle during service. Post-service medical records report continued right ankle symptoms, including pain and instability. In 1991 X-rays of the right ankle showed degenerative changes. In August 1994, reconstruction of the right anterior ligament and right calcaneal fibular ligament was performed due to continued right ankle instability. VA clinical records in 1994 and 1995 reveal complaints of pain, instability, and limitation of motion of the right ankle. A VA medical examination of the joints was performed in February 1997. The veteran complained of aching and pain around the (right) ankle joint. It was reported that he had no external support or help and that he did not use a cane or crutches. Range of motion studies of the right ankle revealed that flexion was to 70 degrees; extension was to 20 degrees; inversion was to 35 degrees; and eversion was to 10 degrees. An X-ray of the right ankle revealed mild diastasis. The diagnosis was status post reconstruction of the lateral collateral ligament of the right ankle with mild diastasis of the ankle joint that may predispose arthritic changes. VA clinical records in April 1997 show that the veteran sustained an avulsion fracture of the tip of the right malleolus. In July and September 1997 the veteran reported continued right ankle pain. Physical findings were equivocal regarding right ankle instability. A VA medical examination of the right ankle that was performed in April 1998 revealed the veteran's complaint of pain over the lateral aspect of the right ankle. He reportedly had right ankle pain about 60 percent of his waking hours, and right ankle pain that awakened him at night. Any physical activity that involved his right ankle caused increased pain. The veteran described his right ankle pain as moderate to severe. The physical examination revealed that the veteran did not appear to have any joint or extremity pain while standing or walking. There was moderate tenderness and edema over the lateral aspect of the right ankle. There was moderate pain reported on dorsiflexion of the right ankle that was to the 0-degree position, and with plantar flexion that was to the 20-degree position. Moderate pain was reported with any ankle inversion or eversion. It was reported that there was no impairment of right ankle strength. The diagnoses were: Status post reconstruction of lateral ligament, right ankle 1994; right ankle sprain, chronic. A personal hearing was held at the RO in December 1998. The veteran testified that he had strong (right ankle) pain that occurred at his job filling cylinders that required standing most of the day. He stated that he wore an ankle brace most of the time and that no mater how far he walked he had right ankle pain. The veteran testified that he had right ankle swelling once or twice per week. He stated that he elevated and placed ice on his right ankle after work each day. The veteran reported that he had right ankle instability once per week and limitation of motion of the ankle. In November 1999 a personal hearing was held at the RO that was conducted by the undersigned Board member. The veteran testified that he wore his ankle brace all day. He stated that he had right ankle pain and weakness. The veteran testified that VA medical personnel had informed him that his right ankle required further surgery. He stated that he used over-the-counter medication for right ankle pain. The veteran was queried about the time he had lost from work due to right ankle symptoms and he when he was "off and on" jobs he would inform potential employers about his ankle problem and they indicated they could not give him a position. He indicated his present job was going "okay." Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 West 1991); 38 C.F.R. § Part 4 (1997). The veteran asserts that he has increased pain and instability in his right ankle and that his right ankle disorder is far more disabling than the current disability evaluation indicates. The veteran's service-connected post-operative residuals of right ankle disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5271 (1999). Degenerative or traumatic arthritis, substantiated by x-ray findings, is rated according to the limitation of motion which results. Moderate limitation of ankle motion is rated as 10 percent disabling, while marked limitation of motion is rated as 20 percent disabling. 38 C.F.R. § 4.71a, Codes 5003, 5010, 5271 (1999). The Board observes that 20 percent is the highest rating available under Diagnostic Code 5271. A 30 percent disability evaluation is also potentially available under Diagnostic Code 5270 for ankylosis of an ankle, in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A review of the clinical evidence shows that the veteran's right ankle is substantially symptomatic, manifested by limitation of motion and instability. While limitation of motion of the right ankle is shown, there is no clinical evidence of right ankle ankylosis, and the 20 percent disability evaluation is the maximum rating available under DC 5271. With respect to the veteran's right ankle pain complaints, the Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999) is warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's joints when the rating code under which the veteran is rated does not contemplate these factors. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In this case, the Board finds no provision upon which to assign a higher rating. As mentioned previously, the 20 percent disability evaluation is the maximum rating available under DC 5271. Furthermore, a review of the medical evidence does not reflect objective evidence of pain greater than that contemplated by the current rating. Thus, the Board finds that 38 C.F.R. §§ 4.40, 4.45 or 4.59 do not provide a basis for a higher rating. The veteran's disability picture does not approximate the criteria necessary for a higher disability evaluation. 38 C.F.R. § 4.7. The Board has considered the veteran's testimony from the December 1998 and November 1999 personal hearings where he reported his right ankle complaints and symptoms. The Board concludes that the weight of the veteran's testimony is limited since the evidence of records does not reveal pathology which equates to the criteria necessary for a higher disability evaluation. Additionally, there is no evidence of loss of time from work due to the right ankle disability. This case does not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, requiring consideration on an extra- schedular basis. 38 C.F.R. § 3.321 (b). In this case, the Board finds that the veteran's right ankle disability is appropriately rated as 20 percent disabling under DC 5271. ORDER An increased evaluation for the post-operative residuals of a right ankle disorder is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals