Citation Nr: 0810468 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-00 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for gunshot wound, fracture, left distal fibula with skin graft, and fracture, left distal tibia. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The veteran served on active duty from September 1959 to September 1962 and from June 1963 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO denied the veteran's claim for service connection for a skin disorder and denied an increased rating for the veteran's service connected gunshot wound, fracture, left distal fibula with skin graft, and fracture, left distal tibia. The matter was previously before the Board in January 2007, at which time the Board remanded the case to the Appeals Management Center (AMC) for further development, to include obtaining additional VA and private treatment records, if any, and to obtain VA examinations for the gunshot wound and skin disorder. Upon completing the development required by the Board, in October 2007, the AMC granted service connection for the skin disability and assigned a noncompensable evaluation. Therefore, as service connection has been granted, the matter is not before the Board at this time. FINDING OF FACT The veteran's pain and swelling cause a marked limitation of range of motion of the left ankle. CONCLUSION OF LAW The criteria for a higher rating for gunshot wound, fracture, left distal fibula with skin graft, and fracture, left distal tibia, to 20 percent have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.71a, Diagnostic Code (DC) 5262, 5270, 5271 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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 deciding the veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under DC 5262, impairment of the tibia and fibula, a 10 percent evaluation is warranted when malunion of the tibia and fibula is accompanied by slight knee or ankle disability. A 20 percent evaluation is warranted when it is accompanied by moderate knee or ankle disability. A 30 percent rating is warranted if there is marked knee or ankle disability, and when there is non union of the tibia and fibula, with loose motion, requiring brace, a 40 percent rating is provided. 38 C.F.R. § 4.71a, DC 5262. DC 5270 provides for an increased rating when there is ankylosis of the ankle; however, the evidence shows that the veteran's ankle is not ankylosed. 38 C.F.R. 4.71a, DC 5270. Under DC 5271, disability of the ankle manifested by limited motion, a 10 percent rating is warranted for "moderate" limitation of motion, and a 20 percent rating is warranted for "marked" limitation of motion. 38 C.F.R. 4.71a, DC 5270. The veteran underwent a VA exam in October 2003. At that time, the veteran indicated symptoms of pain and swelling in the left lower extremity. He denied weakness, stiffness, heat, redness or giving away. He rated his pain at a 7 to 8 and indicated that he has occasional flare-ups, which have no precipitating factors. The pain is alleviated by taking aspirin or propping his leg up. He is able to walk while experiencing a flare-up, but prefers to lie down. His limitations include an inability to wear combat boots. The examiner noted that there were no dislocations or subluxations. Some swelling was noted in the left lower extremity, but no constitutional symptoms. The veteran reported missing work twice in the month prior to the exam due to pain. The veteran's job is done seated, without a lot of standing or walking; however, the veteran has a hard time working with severe pain as it makes concentration difficult. The physical exam revealed a scar above the left lateral malleolus, measuring 7.5 x 3.5 cm. The scar appeared well healed. The scar was not painful. The examiner noted that the veteran had normal range of motion of the ankle joint with normal flexion and extension and normal eversion and inversion without pain on manipulation. The examiner noted no swelling or erythema of the ankle joint. The x-rays from August 2003 showed that bony integrity was intact with no evidence of acute fracture, dislocation, erosions or destructive changes. The examiner noted mild arthritic changes that affected the left ankle and knee. The examiner opined that the veteran's level of disability was low, and though the veteran experienced occasional bouts of pain, he should be reasonably functional with adequate pain management, providing evidence against this claim. At the VA exam conducted in January 2005, the examiner noted that the veteran needed no assistance for walking, and had no functional limitations on standing or walking. Also noted was the scar, which was marked as painful. The veteran continued to have severe flare-ups every 2 to 3 weeks, which could impair motion of functional movements. The examiner noted that the impairments are moderate and require the veteran to rest or even leave work. The leg has to be elevated. The weight bearing joint, left ankle, is affected, and causes an antalgic gait. The examiner indicated that there was also evidence of abnormal weight bearing and abnormal shoe wearing on the right outside edge of the heel. It was also noted that joint motion was limited and the loss of motion was confirmed by swelling, muscle spasm, and satisfactory evidence of painful motion. The examiner noted that there was no additional loss of motion with repetitive use. No ankylosis was present, nor was the ankle shown to be unstable; however, the ankle showed signs of swelling. The examiner noted that the veteran's left knee showed moderate joint space narrowing and degenerative change involving all three compartments of the knee. The tibia distal to the tibial plateau was normal as was the fibula. The ankle showed some earlier degenerative change. In diagnosis, the examiner indicated that the veteran had a gunshot wound of the left ankle and degenerative joint disease of the left ankle. The examiner indicated that the veteran's condition had a significant effect on his occupation, including increased tardiness. Other effects include difficulty walking around at work when experiencing a flare up. Finally, in March 2007, the veteran underwent his most recent VA exam. The VA examiner indicated that the veteran had functional limitations on standing as well as on walking. The limitations indicate that the veteran can stand 3 to 8 hours, with short rest periods, and that the veteran can walk more than .25 mile but less than 1 mile. The examiner indicated that the left ankle exhibited stiffness and pain. No ankle instability or tendon abnormality was indicated. Upon range of motion testing, the examiner indicated that the veteran experienced pain upon testing. The examiner diagnosed the veteran with left lower leg gunshot wound with residual edema and indicated that the injury had significant effects on the veteran occupational activities, in the form of decreased mobility. The injury moderately affects the veteran's ability to do chores, shop, exercise, participate in sports and recreation, and travel. The examiner opined that the veteran's diagnosis, edema, is most likely a result of the veteran's gunshot wound. The examiner stated that the swelling and pain in the left ankle and leg are related to the gunshot wound and not systemic because systemic causes would affect both legs, which is not the case. The examiner indicated that the veteran has an adherent skin graft to peroneal tendons of the left ankle, which limits the veteran's range of motion when there is increased swelling. The veteran's swelling is unilateral and therefore most likely related to the trauma to the soft tissues from the gunshot wound and surgeries. The veteran submitted medical records from a private provider, dated April 2006. In this medical record, the doctor indicated that the veteran had 3+ edema in the leg primarily from the area of the skin grafting down. The skin graft is scarred over the peroneal muscles. Also noted was increased pain in Tinel's along the peroneal nerves. The doctor indicated that an increase in swelling causes a decrease in the range of motion. The doctor indicated that other than anti-inflammatory medications and exercise programs, there was nothing else he could offer the veteran because of the skin loss and the way that the skin graft had healed. The veteran also submitted VA outpatient treatment records from the Tennessee Valley Healthcare System. In April 2004, the veteran indicated that the swelling in his ankle was persistent and that he had to leave work on three occasions because of it. The exam showed nonpitting edema of the left ankle and foot and the gunshot wound was noted. In April 2005, the VA treatment records indicated that the veteran's left lower extremity, distal leg but above the ankle laterally, showed a remnant of the ulcer scar from the gunshot wound and that there was moderate edema in the area of the ankle and distal tibial areal. In July 2005, the veteran indicated chronic leg pain from the gunshot wound. In July 2006, the veteran had some chronic swelling in the left lower extremity, and had reduced range of motion of his ankle. The range of motion worsens as the swelling increases. Edema was noted in the left leg. The veteran submitted a lay statement from his spouse. She indicated that she and the veteran had been married 3 times since 1976. She stated that the veteran had been complaining of left leg pain since their most recent remarriage in September 2004. She indicated that the veteran has started limping more and has problems walking normally. The veteran also submitted multiple statements addressing his gunshot wound and residuals. In November 2007, the veteran indicated that the walking limitation of .25 to less than 1 mile, noted by the March 2007 examiner, is only true when his ankle is not frozen or when there is no edema causing loss of range of motion. He further indicated that when his ankle suffers edema, his leg can swell to the point of losing all movement of the ankle. When this occurs, the veteran cannot walk normal and must turn his foot sideways to walk and hobble. Movement is very slow. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran is competent to describe symptoms he experiences related to his gunshot wound and residuals. Based upon the foregoing, and giving the benefit of the doubt to the veteran, the Board finds that the evidence shows that the veteran's disability more closely approximates the criteria providing for a 20 percent disability under DC 5271, marked limitation of motion. Per the VA examiners, his symptoms have limited his ability to participate in basic functions, such as completing chores, going shopping, and participating in recreation and travel activities. The condition has also impacted the veteran's employment, as the pain has caused him to miss days of work. More importantly, the March 2007 VA examiner characterized the impairments as significant and/or moderate, with the symptoms causing decreased mobility. Most of the medical opinions, including the VA outpatient treatment records, private records, and the March 2007 VA exam indicate that the veteran suffers reduced range of motion due to edema. The January 2005 VA exam indicates that the veteran has severe flare-ups every 2 to 3 weeks, which impairs functional movements. The January 2005 examiner noted that the left ankle is affected, and the symptoms cause an antalgic gait. It was also noted that joint motion was limited and the loss of motion was confirmed by swelling, muscle spasm, and satisfactory evidence of painful motion. It is important for the veteran to understand that not all medical evidence in this case supports his claim and some evidence in this case provides evidence against this claim. However, in addition to the criteria listed at DC 5262 and 5271, the Board must also consider whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has also taken into consideration the veteran's multiple statements complaining of pain, swelling, loss of range of motion, and most recently in the March 2007 VA exam, stiffness. The Board has also considered the fact that the veteran has had to miss days of work due to pain. The VA exams support the findings of pain, which can reach 7 to 8 during flare-ups. Flare-ups occur every two to three weeks. The examiners noted that the veteran indicated pain upon range of motion testing and found functional loss of use. Based upon the veteran's subjective complaints of pain, swelling, and stiffness, and upon the medical evidence verifying the veteran's pain, swelling, stiffness, and functional loss of use, the Board finds that the DeLuca criteria further supports a disability rating of 20 percent. However, based upon the veteran's complaints and the medical evidence of record, the Board cannot find that the veteran is entitled to a rating greater than 20 percent. Evaluation under DC 5262 is not warranted as the evidence does not show malunion of the tibia and fibula with marked knee or ankle disability. Inasmuch as the veteran does not have ankylosis, evaluation under the provisions of Diagnostic Code 5270 is not warranted. DC 5271 does not provide for a disability rating greater than 20 percent. The Board notes that the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). It is important for the veteran to understand that he is already receiving a 20 percent evaluation for his left leg as the result of his varicose veins and may not receive two disability evaluations for the problem he is having with one disorder. Based on the evidence the Board believes that the veteran can receive two twenty percent evaluations for his left lower extremity problem based on the problem with his varicose veins and with his ankle, but any more would clearly be pyramiding. The Board further finds that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the service-connected disability at issue, which would take the veteran's case outside the norm, thus warranting an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in October 2003 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Here, the VCAA Vazquez-Flores duty to notify was satisfied by way of a letter sent to the veteran in October 2003 that informed the veteran that to substantiate an increased ratings claim, the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained VA outpatient treatment records. The veteran submitted personal and lay statements, VA outpatient treatment records, and private treatment records. The veteran was afforded VA medical examinations in March 2007, January 2005, and October 2003. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to an increased rating for gunshot wound, fracture, left distal fibula with skin graft, and fracture, left distal tibia, is granted at 20 percent disabling. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs