Citation Nr: 0812193 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-26 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for the residuals of a fracture of the right fibula and tibia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Millikan Sponsler, Associate Counsel INTRODUCTION The veteran served on active military duty from August 1984 to July 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) and August 2007 Board remand. In an April 2003 rating decision the RO granted service connection for residuals of an inservice fracture of the mid- shaft fibula and medial/distal tibia. The RO styled the disability as status-post fracture, mid-shaft fibula, medial/distal tibia, chronic right knee strain. The RO utilized a diagnostic code to rate the veteran's fracture residuals that evaluates the disability based on either an ankle or knee disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). From the rating decision, the precise nature of the fracture residuals and whether the RO had rated the residuals on the basis of an ankle or knee disability was unclear. Accordingly, in August 2007, the Board remanded this case for clarification of the exact nature of the service-connected fracture residuals. In a subsequent VA examination, an examiner determined that the fracture residuals were ankle-related and not knee-related. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is not free to substitute its own judgment for that of an expert). The Board thus rates the service-connected disability on the basis of the actual fracture residuals - an ankle disability. The Board finds that the evidence of record raises a claim for entitlement to service connection for a knee disorder, to include as secondary to service-connected fracture residuals. This issue is referred to the RO for action deemed appropriate. FINDING OF FACT Residuals of a fracture of the right fibula and tibia (fracture residuals) are manifested by right ankle plantar flexion to 30 and 35 degrees and dorsiflexion to 15 and 20 degrees. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim for entitlement to an initial evaluation in excess of 10 percent for fracture residuals, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to an October 2007 post-remand re-adjudication of the veteran's claim, an August 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by the issuance of a fully compliant notification letter followed by a re- adjudication of the claim). Although the veteran was not notified prior to the initial adjudication of his claim for entitlement to service connection that a disability rating and an effective date would be assigned should the claim be granted and was not notified of any specific requirements to obtain certain percentage evaluations for the fracture residuals, the Board notes that this notice is not required in initial evaluation claims because "where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); see also Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The August 2007 letter also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). The veteran's service medical records, VA medical treatment records, VA examination reports, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2007). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes, however, that this rule does not apply here, because the current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). By an April 2003 rating decision, the RO granted service connection for fracture residuals and assigned a 10 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5262, effective December 5, 2002. In September 2003, the veteran filed a notice of disagreement regarding the disability evaluation. The RO issued an SOC in June 2004. In June 2004, the veteran filed a substantive appeal. In an October 2007 supplemental SOC, the RO continued the 10 percent evaluation. In a March 2003 lay statement, the veteran reported right ankle discomfort and pain that he tried to control with over the counter medication. In a March 2003 private medical record, the veteran reported right ankle pain. He reported pain upon prolonged walking or jumping. The assessment was ankle pain. An April 2003 VA joints examination was conducted. The veteran reported right leg pain with standing, walking, bending, and stooping. He reported increasing pain and flare-ups upon squatting and excessive standing that were relieved by ice, elevation, and pain medication. He stated the he limped about twice per week due to flare-ups and could not run anymore due to the pain. The veteran stated that he worked as a mechanic and had not missed any work in the past year because he needed the money so he dealt with the pain. Upon examination, there was plantar flexion to 30 degrees and dorsiflexion to 20 degrees, both with pain. There was positive tenderness to the bony prominence of the medial malleolus and lateral mid shaft of the fibula and an increased bony prominence of the medial malleolus area which was tender to palpation. X-rays showed right tibia/fibula old fracture deformity of the mid shaft of the fibula, right ankle cortical effusion of the distal tibia fibula, moderate calcaneal tendon calcification, and possible osteoarthritis. A September 2007 VA joints examination was conducted with review of the claims file. The veteran reported intermittent right ankle pain and stiffness that was aggravated by prolonged standing and walking. The pain was almost daily with daily morning stiffness. The veteran denied swelling, flare-ups, and incapacitation. He also reported that there were no occupational effects, but that he had difficulty negotiating stairs. The veteran used over the counter medication and did not use any assistive devices. Upon examination, there was right ankle flexion to 35 degrees and dorsiflexion to 15 degrees, both with pain. There was inversion to 25 degrees and eversion to 15 degrees, without pain. The examiner found no ankle crepitus, deformity, erythema, effusion, instability, or tenderness. Repetition did not cause additional limitation of motion loss due to pain, weakness, fatigue, incoordination, or lack of endurance. The diagnosis was traumatic arthritis right ankle, status-post tibia fibula fracture, status-post open reduction internal fixation with subsequent hardware removal. The VA examiner opined that the service-connected fracture residuals included only ankle manifestations. The veteran's current 10 percent evaluation for fracture residuals contemplates malunion of the tibia and fibula with slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. For impairment of the tibia and fibula, 20, 30, and 40 percent evaluations are assigned for malunion with moderate knee or ankle disability, malunion with marked knee or ankle disability, and nonunion of the tibia and fibula with loose motion, requiring a brace, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The veteran's fracture residuals are manifested by right ankle plantar flexion to 30 and 35 degrees out of a possible 45 degrees, and dorsiflexion to 15 and 20 degrees out of a possible 20 degrees. These range of motion findings do not constitute moderate or marked ankle disability because, at a minimum, they demonstrate 2/3 full range of motion. In addition, the evidence does not demonstrate loose motion requiring the use of a brace. Accordingly, an initial evaluation in excess of 10 percent is not warranted. The Board has considered other potentially applicable diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). For limited ankle motion, a maximum 20 percent evaluation is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2007). Here, as noted above, there was plantar flexion to 30 and 35 degrees out of a possible 45 degrees and dorsiflexion to 15 and 20 degrees out of a possible 20 degrees. These range of motion findings do not constitute marked limitation of ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Additionally, the evidence of record does not demonstrate ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (2007). Accordingly, an initial evaluation in excess of 10 percent is not warranted under alternative diagnostic codes. The Board has also considered an increased evaluation for traumatic arthritis, which is rated identical to degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2007). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. But as noted above, an increased evaluation is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, General Rating Formula. The Board has also considered whether there is any additional functional loss not contemplated in the current 10 percent rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2007); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Factors involved in evaluating and rating disabilities of the joints include: weakness; fatigability; lack of coordination; restricted or excess movement of the joint; or, pain on movement. 38 C.F.R. § 4.45 (2007). The veteran consistently reported right ankle pain and stiffness. In April 2003, the veteran reported flare-ups upon squatting and excessive standing that were relieved by ice, elevation, and pain medication. In September 2007, the veteran reported that pain was aggravated by prolonged standing and walking but denied swelling and flare-ups. He also reported that he had difficulty negotiating stairs, used over the counter medication and did not use any assistive devices. The veteran stated that he worked as a mechanic and had not missed any work in the past year because he needed the money so he dealt with the pain. The objective medical evidence of record consistently demonstrated painful range of ankle motion. In April 2003, the examiner found tenderness of the tibia/fibula and ankle area. In September 2007, there was no ankle crepitus, deformity, erythema, effusion, instability, or tenderness. Repetition did not cause additional limitation of ankle motion due to pain, weakness, fatigue, incoordination, or lack of endurance. In summary, the veteran reported pain and stiffness with aggravation upon prolonged use, and the objective evidence indicated ankle tenderness, but the objective evidence also demonstrated that repetition did not cause additional limitation of motion due to pain, weakness, fatigue, incoordination, or lack of endurance. Accordingly, the Board finds that there is no additional functional loss not contemplated in the 10 percent rating and that an initial evaluation in excess of 10 percent on this basis is not warranted. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2007). "The governing norm in these exceptional cases 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." Floyd v. Brown, 9 Vet. App. 88 (1996). In this regard, the schedular evaluation in this case is not inadequate. A rating in excess of 10 percent is provided for certain manifestations of the service-connected fracture residuals but the medical evidence reflects that those manifestations are not present in this case. Moreover, the Board finds no evidence of an exceptional disability picture. The veteran has not required hospitalization and marked interference of employment has not been shown due to fracture residuals. The Board notes that the veteran denied any occupational effects. In the absence of any additional factors, the RO's failure to consider referral of this issue for consideration of an extraschedular rating or failure to document its consideration did not prejudice the veteran. After a review of the evidence, there is no evidence of record that would warrant an initial evaluation in excess of 10 percent for fracture residuals at any time during the period pertinent to this appeal. 38 U.S.C.A. 5110 (West 2002 & Supp. 2007); see also Hart, 21 Vet. App. 505. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation in excess of 10 percent for fracture residuals is not warranted. ____________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs