Citation Nr: 0811032 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-13 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for residuals of a left ankle fracture. 2. Entitlement to an initial evaluation in excess of 10 percent for a left knee disability, post arthroscopic surgery, anterior cruciate ligament and medial meniscus repair. ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran is a member of the United States Army Reserve, who was on active duty for the periods of May 2002 to February 2003, August 2003 to December 2003, and January 2004 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Appeals (VA), which granted service connection with a 10 percent rating for a left knee disability, and denied service connection for a left ankle disability. A Notice of Disagreement (NOD) was received in September 2005, and a Statement of the Case (SOC) was issued in February 2006. The veteran perfected his appeal with the timely filing of a VA Form 9, Appeal to Board of Veterans' Appeals, in April 2006. A Supplemental SOC (SSOC) was issued in August 2007. FINDINGS OF FACT 1. There is no current disability involving the left ankle. 2. The left knee disability is manifested by slight limitation of motion in flexion and pain on use with increased pain on repetitive use; there is no evidence of arthritis, ankylosis, instability, limitation of extension, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. Service connection for residuals of a left ankle fracture is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. The criteria for an evaluation in excess of 10 percent for a left knee disability, post arthroscopic surgery, anterior cruciate ligament and medial meniscus repair are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5259 and 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Assist and Notify 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 or her 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 VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite 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). With respect to the claim for assignment of a higher initial evaluation for a left knee disability, however, 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). Therefore, no further discussion of VA's duty to notify is required regarding the left knee. As to the claim of service connection for a left ankle disability, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in December 2004 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. The Board notes in Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided in December 2004 did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA additionally 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. The Board finds that all necessary development has been accomplished in this case, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). No VA treatment records have been identified. The RO has obtained service treatment records for the veteran's initial period of active duty, and he has supplied copies of service medical records for subsequent periods of active and inactive duty as an Army Reservist. The veteran additionally submitted copies of private treatment records from UMMC from January to April 2005 and from GBMC from April 2006. The appellant was afforded VA medical examinations in January and October 2005. Significantly, the appellant has not 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. He has referred to prospective treatment, but has not submitted evidence that such actually occurred. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Service Connection for Residuals of a Left Ankle Fracture Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialize d education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service medical records very clearly establish that the veteran sustained a displaced distal stress fracture of the left fibula at the ankle in June 2002 while on active duty during basic combat training. Initially, he was treated with RICE (rest, ice, compression, elevation) protocols, but in early July 2002, a weight bearing cast was applied, after which the veteran received physical therapy treatment. He complained of swelling and ankle pain. By October 2002, doctors reported there was full active range of motion without swelling or tenderness. The veteran reported no problems. He was released to full duty. Subsequent service records show no treatment for or complaint of ankle problems. He has had two periods of active duty following his injury without indication of impairment. During a January 2005 VA joints examination, the veteran reported that he was not receiving active care for his left ankle, and had not missed work in the prior 12 months because of joint problems. He complained of discomfort with prolonged standing, walking, running, and climbing stairs. The veteran was observed to walk briskly with normal gait and posture. He heel and toe walked without difficulty. Dorsiflexion of the left ankle was to 20 degrees and plantar flexion was to 40 degrees. There was no instability of the joint. X-ray of the ankle showed no definite acute fracture, and the mortise appeared intact. The examiner diagnosed a healed fracture of the left ankle. The examiner stated that there was "no evidence of musculoskeletal limitation either due to pain, loss of motion, incoordination, weakness, flare up or lack of endurance after repetitive motion" related to the left ankle. Private treatment records from UMMC and GBMC show no complaints of or treatment for any left ankle disability. Care was focused on a severe headache in January 2005, and on the left knee in April 2005 and April 2006. During an October 2005 VA joints examination, the examiner focused on the left knee disability; he did not consider or discuss the left ankle. The veteran was also not asked about the ankle. It is undisputed that the veteran sustained a fracture of the left fibula at the ankle while on active duty, thereby satisfying the first test of service connection. There is a complete absence of evidence, however, of any residual disability. Military doctors treated the fracture and deemed the veteran completely healed, releasing him to active duty without restriction and noting no complaints by the veteran. Following service, there is no medical evidence of any functional impairment of any kind, or of any physical changes to the left ankle joint. The veteran has presented no evidence of ongoing left ankle treatment, and in fact specifically denied such during a VA examination. X-rays are normal, and objective testing shows no functional limitations. The January 2005 VA examiner even appears to discount the veteran's subjective complaints of problems with prolonged activity in face of the lack of any corroborating findings of disability. Because there is no current disability shown, service connection cannot be granted at this time. Brammer, supra. Should the veteran experience functional impairment in the future, he is encouraged to reopen his claim at the RO. Evaluation of Left Knee Disability, Post Arthroscopic Surgery, Anterior Cruciate Ligament And Medial Meniscus Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Compensation for service-connected injury is limited to those claims which show present disability. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Service medical records reveal that the veteran first complained of left knee pain and swelling in October 2002, while on active duty. In September 2003, following continued complaints of pain and swelling when running, an MRI confirmed a torn lateral meniscus and a tear of the anterior cruciate ligament (ACL). Surgery was performed in February 2004, and the veteran again underwent physical therapy to assist in healing. The veteran continued to complain of left knee pain. During a January 2005 VA joints examination, the veteran reported that he was not receiving active care for his left knee, and had not missed work in the prior 12 months because of joint problems. He complained of discomfort with prolonged standing, walking, running, and climbing stairs. The veteran was observed to walk briskly with normal gait and posture. He heel and toe walked, and was able to dress and undress, squat, and get on the examination table without difficulty. Range of motion of the left knee was from 0 degrees extension to 135 degrees flexion, without pain. There was no medial or lateral instability, and drawer signs were negative, as were McMurray's and Lachman's tests. The effusion or joint line tenderness was adduced. There was crepitation with movement of the left knee. X-ray showed an anterior cruciate ligament repair with a single pin. Discomfort in the left knee with prolonged standing, walking, running, and climbing stairs caused limitation of activity, but the examiner found no limitation of function due to pain, loss of motion, incoordination, weakness, flare-up or lack of endurance after repetitive motion. In April 2005, the veteran sought treatment at UMMC for complaints of left knee pain. He reported a regular aching pain with movement of the knee. He rated the pain a 6 out of 10, and related symptoms to his activity level. Specifically, he was involved in "boot camp," or Reserve drills, the weekend before. A knee sprain was diagnosed and ibuprofen was recommended. A second VA joints examination was performed in October 2005. The veteran reported that he had pain in the knee since his 2004 surgery. Currently the pain was intermittent, occurring two to three times a week after repetitive activities, such as prolonged walking, standing or sitting. The veteran stated that when the pain occurs, he must lie down and take all weight off the knee. Symptoms persist through the remainder of the day and often to the next day. He denied any instability or locking of the joint. There is clicking and grinding in the joint. He takes no pain medication and occasionally uses a brace. The veteran has not missed work in the past 6 months because of joint problems. He can walk a mile before stopping due to pain. There is joint tenderness over the medical and inferior portions of the knee. There is no effusion, muscle atrophy, or muscle weakness. No laxity or instability is detected in the joint. Range of motion is from 0 degrees extension to 120 degrees flexion, limited by pain. Pain is the main factor in limiting activity, and is brought on by repetitive activities. Gait is normal. X-ray showed no interval change since January 2005; the pin inserted for ACL repair was still present. In April 2006, the veteran was treated at the GBMC emergency room for knee pain. A knee sprain was diagnosed. The veteran was instructed to use RICE protocols. He was also prescribed percocet for pain as needed. Follow up care was recommended, but is not shown to have occurred. Under 38 C.F.R. § 4.71a, there are multiple diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. These include the following: Diagnostic Code 5256 (for rating ankylosis): Diagnostic Code 5257 (for rating other impairment, including recurrent subluxation or lateral instability); Diagnostic Code 5258 (for rating dislocated semilunar cartilage); Diagnostic Code 5259 (for rating symptomatic removal of semilunar cartilage); Diagnostic Code 5260 (for rating limitation of flexion); Diagnostic Code 5261 (for rating limitation of extension); Diagnostic Code 5262 (for rating impairment of the tibia and fibula); and Diagnostic Code 5263 (for rating genu recurvatum). Diagnostic Codes 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, may also be applicable to the knee. 38 C.F.R. § 4.71a. Here, however, there is no showing of ankylosis, instability of the joint, limitation of extension, impairment of the tibia or fibula, or genu recurvatum; x-rays have been negative for any arthritic changes of the joint. The Codes relevant to these disabilities are therefore not discussed in detail here. Similarly, the veteran has undergone repair of the soft tissues of his knee, and there is no showing of a recurrence of injury to the cartilage, and hence Code 5258 is not for application in this case. The RO has evaluated the left knee disability as 10 percent disabling under Code 5259. This is the maximum assignable schedular evaluation when the removal of semilunar cartilage of the knee, or the menisci, is symptomatic. In this instance, no higher schedular evaluation is available unless the disability is rated under a different Diagnostic Code, specifically Code 5260 for limitation of flexion, as impairment of flexion, related to pain, is the sole functional limitation noted in the medical evidence. Here, however, the measured limitation, to 120 degrees at the maximum point, does not meet the schedular criteria for a compensable evaluation under Code 5260. Upon consideration of the DeLuca factors, as discussed above, a 10 percent evaluation is assignable to reflect the actual functional impairment of the knee due to pain. This offers no advantage to the veteran. Although the veteran alleges that his degree of pain is severe enough as to cause the equivalent of a higher level of impairment of flexion, the competent medical evidence and subjective descriptions do not support such a finding. Objectively, there is no greater than slight impairment of motion of the knee, and the observable movement of the joint during examinations does not indicate that normal and average use causes radical increase in that impairment. The veteran stated that prolonged activity causes increased impairment, and refers to an ability to walk a mile before pain caused him to stop. The veteran reports no unusual impact on his work or home activities. In the absence of objective corroboration of the veterans described extreme impairment on flare ups, the Board finds the subjective allegations of additional impairment not fully credible, and relies more heavily on the objective testing. The Board notes that the veteran does not seek ongoing treatment, and has presented evidence of care only after acute exacerbations and apparent intercurrent sprain injuries of the knee. These infrequent episodes of heightened pain cannot support the assignment of a higher evaluation under Code 5260. The claim must be denied. The Board has considered assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b). The disability picture presented, however, is not so unusual as to render application of the rating schedule impractical, and factors such as frequent hospitalization or excessive interference with work are not present. ORDER Service connection for residuals of a left ankle fracture is denied. An initial evaluation in excess of 10 percent for a left knee disability, post arthroscopic surgery, anterior cruciate ligament and medial meniscus repair is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs