Citation Nr: 0003469 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 94-10 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of zero (0) percent for a left ankle disorder, from February 5, 1993, to February 24, 1997. 2. Entitlement to a disability rating in excess of 10 percent for a left ankle disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD S. J. Janec, Associate Counsel INTRODUCTION The veteran had active military service from March 3, 1978, to May 25 1982, and from May 26, 1982, to December 25 1985. This matter comes before the Board of Veterans' Appeals (Board) from a May 1993 rating decision of the Roanoke Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a left ankle disorder. The veteran appealed this decision to the Board. In a July 1996 decision, the Board remanded the issue to the RO for further development, to include a medical examination. In an April 1997 rating decision, the RO granted service connection for a left ankle disorder, and assigned a 10 percent disability rating, effective from February 25, 1997, the date of the VA examination. In a notice of disagreement (NOD), received in June 1997, the veteran indicated that he was seeking an increased rating and an earlier effective date. In March 1998, the Board remanded the case to the RO for a second time, to comply with certain procedural requirements arising out of recent precedent decisions of the United States Court of Appeals for Veterans Claims and the United States Court of Appeals for the Federal Circuit. The Board is satisfied that the requested development has been accomplished, and will address the merits of the claim in the decision that follows. As explained in greater detail below, the Board has recharacterized the issues as noted on the initial page of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's initial claim for service connection and compensation benefits for a left ankle disorder was received by the RO on February 5, 1993. 3. Slight limitation of motion of the veteran's left ankle was first demonstrated upon VA examination on February 25, 1997; the medical evidence of record does not show the presence of any compensable symptoms of the left ankle prior to that time. 4. The veteran's left ankle disorder is characterized by slight limitation of motion and point tenderness; no additional factors affecting limitation of motion were indicated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of zero (0) percent for a left ankle disorder, from February 5, 1993, to February 24, 1997, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.400(o), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (1999). 2. The criteria for a rating in excess of 10 percent for a left ankle disorder, from the date of the veteran's original claim for compensation, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reveal that the veteran sprained his left ankle while playing basketball in October 1978. Numerous notations throughout 1979 indicate he complained of chronic left ankle pain. In August 1979, an assessment was made of a possible chronic ligamentous strain to the left ankle. Also in August 1979, a clinical record reported that the veteran had run into a shack with a motorcycle and was complaining of an injury to the right leg as a result. There were no complaints regarding the left ankle after the accident. Subsequent service medical records are negative for further complaints regarding the left ankle. Upon the re-enlistment examination, in April 1982, all pertinent findings were negative. A clinical record from March 1984 reveals a sprain of the right ankle while playing basketball, but again there were no complaints regarding the left ankle. A medical record from the Maryland Division of Correction, dated in May 1989, indicates that the veteran was seen for complaints of pain in his left ankle. There was no swelling present, and he walked without difficulty. A subsequent record, dated in March 1991, noted a complaint of a twisted left ankle. However, the veteran failed to show up for a scheduled appointment. At a VA orthopedic examination in February 1993, the veteran gave a history of two injuries to the left ankle. At present, he complained of an "achy" pain in the left ankle. Running and changes in weather increased the pain. Tylenol relieved the pain. Clinical evaluation of the left ankle revealed no point tenderness or joint effusion. The joint was stable. There was no swelling or other deformity. Range of motion of the left ankle consisted of plantar flexion to 40 degrees, and dorsiflexion to 20 degrees. Chronic pain of the left ankle was diagnosed. A private medical record from Wilford K. Gibson, M.D., dated in January 1997, indicated that the veteran was seen for complaints of pain and swelling in his left ankle. He related that he had injured his ankle on two occasions in service, and had re-injured it in a motorcycle accident after his discharge. Physical examination revealed that the veteran walked without a limp, and he did not need any aids for ambulating. He was able to walk on his heels and toes. There was no tenderness medially; however, there was some diffuse tenderness along the anterior talofibular ligament laterally. Anterior drawer was graded as 1+. Talar tilt was negative. Subtalar motion was full; and sensation was intact to light touch throughout the left foot. Range of motion of the left ankle was plantar flexion to 40 degrees, and dorsiflexion to 20 degrees. Probable ligamentous instability of the left ankle was diagnosed. Ice, elevation, and oral steroids were prescribed for treatment. At a VA orthopedic examination in February 1997, the veteran related that he had injured his left ankle in service. Two years later, he had reinjured it playing basketball, and it was injured a third time in a motorcycle accident after he was discharged from service. At present, he stated that he thought his left ankle was weaker than the right, and it ached in cold weather. He was unable to run or play basketball anymore. He wore an Ace bandage around the ankle. Clinical evaluation revealed that there was tenderness over the extensor surface of the left mid-foot and ankle. There was no swelling or other deformity. Range of motion was plantar flexion from 0 degrees to 35 degrees; dorsiflexion from 0 degrees to 10 degrees; pronation from 0 degrees to 30 degrees; and supination from 0 degrees to 15 degrees. X-rays showed no significant findings. Tendonitis of the left ankle, with pain around the extensor tendon, was diagnosed. The examiner concluded that there was evidence of an injury to the veteran's left ankle during service, and also evidence of a motorcycle accident occurring after service, which added to the injury of the left ankle. The examiner opined that the veteran's ankle injury was due to service and was aggravated by the later motorcycle injury. The RO attempted to get further treatment records from the Marine Corps Air Station in El Toro, California, and the Naval Hospital in Santa Ana, California, in December 1998, pertaining to the veteran's motorcycle accident. However, no response was received. The veteran was scheduled to testify at a personal hearing before a Member of the Board in Washington, DC, in September 1999. He failed to report on the appointed date. II. Analysis The Board finds the veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims has held that, when a veteran asserts that a service-connected disability has increased in severity, the claim for an increased rating is generally well grounded. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Furthermore, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him, as mandated by 38 U.S.C.A.§ 5107(a). In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Cf. Powell v. West, 13 Vet.App. 31 (1999) (holding that earlier findings may be used if the most recent examination is inadequate). The Board recognizes that the United States Court of Veterans Appeals has held that there is a distinction between an original rating and a claim for an increased rating. Thus, the rule espoused in the Francisco precedent, above, may not be applicable in the present case, because the veteran's claim for service connection and disability compensation for a left ankle disorder has remained in appellate status since he filed an NOD as to the initial decision on his original claim. Fenderson v. West, 12 Vet.App. 119, 125-26 (1999). Under the Court's holding in the latter case, a veteran may assert that his condition at the time of his original claim was worse than it was at a later stage of his appeal, and, where the record warrants it, VA may assign "staged ratings" to reflect different levels of disability during the pendency of the claim. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant 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. A little-used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40 (1999). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (1999). 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. In DeLuca v. Brown, 8 Vet.App. 202 (1995), the Court held that diagnostic codes which provide a rating solely on the basis of loss of range of motion must be considered with 38 C.F.R. §§ 4.40, 4.45 (regulations pertaining to functional loss of the joints due to pain, etc.). Therefore, to the extent possible, the degree of additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination should be noted. The rating decisions in the claims file reflect that the veteran's disability is, at present, evaluated under the provisions of Diagnostic Code (DC) 5271 of VA's Schedule for Rating Disabilities, at 38 C.F.R. § 4.71a. DC 5271 pertains to "limitation of motion of the ankle." Moderate limitation of motion of the ankle is assigned a 10 percent disability rating. Marked limitation of motion of the ankle warrants a 20 percent disability rating. This is the maximum rating available under that code. Ankylosis of the ankle, in less than 30 degrees of plantar flexion, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5270. Full range of motion of the ankle is measured from 0 degrees to 20 degrees dorsiflexion, and 0 degrees to 45 degrees in plantar flexion. 38 C.F.R. § 4.71, Plate II. The law provides that increased ratings are effective as of the date of receipt of claim, or date entitlement arose (i.e., when it is factually shown that the requirements for the increased rating are met), whichever is later; an exception to this rule is that the effective date may be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received by VA within one year after that date. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). Initially, the Board notes that the veteran's claim for service connection and compensation for a left ankle disorder has remained in appellate status since it was initially filed on February 5, 1993. During the course of the appellate process, service connection for a left ankle disorder was established, and a 10 percent rating was assigned effective February 25, 1997. A noncompensable evaluation was assigned from the date of the claim up to the day before the VA examination that was conducted in February 1997. The veteran has asserted that he is entitled to both an increased rating for the disability, and an earlier effective date for the assignment of the 10 percent (or higher) rating. As discussed above, Fenderson v. West, 12 Vet.App. 119, 125- 26 (1999), provides that VA may assign "staged ratings" to reflect different levels of disability during the pendency of a claim. In fact, the RO did assign staged ratings to the veteran's left ankle disorder in the April 1997 rating decision. Therefore, the Board finds that, under the unique circumstances presented here, the issue of an earlier effective date for the assignment of a 10 percent rating for the veteran's left ankle disorder should properly be characterized as entitlement to rating in excess of zero percent for a left ankle disorder from the date of his claim, February 5, 1993, up to February 24, 1997, the day before the VA examination. The second issue would then be entitlement to a rating in excess of 10 percent for the left ankle disorder, from the date he initially filed his claim. The Board finds that the veteran's left ankle disorder is appropriately rated under DC 5271. However, in considering the first issue, the Board also finds that a rating in excess of 0 percent, from February 5, 1993, to February 24, 1997, may not be assigned. At a VA examination in February 1993, clinical evaluation of the left ankle revealed full range of motion. In addition, there was no swelling or deformity present. A private medical record, dated in January 1997, also indicated that the veteran had full range of motion of the left ankle, and some diffuse tenderness along the anterior talofibular ligament. Slight limitation of motion of the left ankle was first demonstrated upon VA examination in February 1997. Based upon this evidence, as well as the veteran's complaints of pain, the RO assigned a 10 percent rating for the veteran's disability under DC 5271, effective from the date of the VA examination, February 25, 1997, in accordance with 38 C.F.R. § 3.400(o). In essence, this was the earliest date on which it was factually ascertainable, from the record, that an increase in disability had occurred. Next, the Board concludes that a rating in excess of 10 percent for the veteran's disability may not be assigned for any period of time during which his claim has been active and/or in appellate status. At the most recent VA examination in February 1997, clinical evaluation revealed some tenderness over the extensor surface of the left mid- foot and ankle. Plantar flexion was to 35 degrees, dorsiflexion to 10 degrees, pronation to 30 degrees, and supination to 15 degrees. X-rays did not demonstrate any significant abnormalities. Based on this evidence, the Board concludes that the veteran's limitation of ankle motion would only be considered slight, and thereby noncompensable. In light of the veteran's complaints of pain and discomfort, it appears that the RO considered DeLuca, supra, and the provisions of 38 C.F.R. §§ 4.40 and 4.45, and found that, under 38 C.F.R. § 4.7, the veteran was entitled to the next higher rating of 10 percent under DC 5271. Having carefully reviewed the claims file, we agree that the 10 percent rating is warranted. We do not, however, discern that the level of pain and discomfort supports yet a higher evaluation at this time. Hence, in view of the evidentiary record before us, it is the Board's judgment that the 10 percent rating currently assigned best reflects the veteran's service-connected left ankle disorder, from the time of the VA examination in February 1997, to the present, and that a higher rating was not warranted at any time during the course of the veteran's claim or his appeal. The Board has also considered whether 38 C.F.R. § 3.321(b)(1) might provide for an increased rating on an extraschedular basis. That regulation provides that, in exceptional cases where schedular evaluations are found to be inadequate, "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities" may be assigned. The governing norm is 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 as to render impractical the application of the regular schedular standards. See VAOPGCPREC 36-97 (Dec. 12, 1997). However, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required frequent hospitalization for his left ankle disability, nor is it shown that it markedly interferes with employment beyond the degree anticipated by the schedular rating. Finally, the Board notes that, in her November 1999 Informal Hearing Presentation, the veteran's representative asserted that the case should be remanded to the RO again pursuant to Stegall v. West, 11 Vet.App. 268 (1998). In that case, the United States Court of Appeals for Veterans Claims held that the Board must remand any case in which there has been a failure to comply with directions in an earlier Board remand. The representative argues that the March 1998 remand required that the RO schedule the veteran for another VA examination. The Board respectfully disagrees. The purpose of the March 1998 remand was to obtain additional evidence pertaining to the veteran's motorcycle accident and to provide the veteran the opportunity to properly file his appeal. The Board merely advised the RO to schedule another examination for the veteran if additional treatment records were obtained; a new examination was not required. However, no additional treatment records were associated with the veteran's file, and such examination was unnecessary. Moreover, to the extent that the representative argues that the February 1997 examination failed to comply with the requirements of DeLuca, supra, as discussed above, the Board found the examination to be sufficient for rating purposes, and also found that DeLuca has not only been considered, but applied to the veteran's case. Therefore, the Board concludes that no further findings were necessary. With all due respect for the contentions of the representatative, we conclude that any further remand would only unnecessarily delay the resolution of the veteran's claims, with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet.App. 203, 207 (1999) (en banc); Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991); Sabonis v. Brown, 6 Vet.App. 426, 430 (1994). In conclusion, while we appreciate the veteran's sincere belief in the merits of his claim, the actual objective findings do not support his assertions for a higher rating for his disability, from the time he filed his claim to the present. As such, the Board concludes that the preponderance of the evidence is against the claim, and therefore, it remains denied. ORDER A rating in excess of zero (0) percent for a left ankle disorder, effective from February 5, 1993, to February 24, 1997, is denied. A rating in excess of 10 percent for a left ankle disorder, from the date of the veteran's original claim for compensation, is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals