Citation Nr: 0813860 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 01-09 625A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for pancreatitis and cholelithiasis. 2. Entitlement to an initial rating in excess of 10 percent for residuals of left and right ankle injuries, with arthritis. REPRESENTATION Appellant represented by: Swords to Plowshares, Veterans Rights Organization, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had active service from March 1974 to February 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2000 determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Oakland, California. In an April 2005 rating decision, the RO granted service connection for the veteran's right ankle disorder and assigned a 10 percent disability rating together with the left ankle disorder, effective March 10, 1998. In February 2006, the veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge at the RO. In June 2006, the Board remanded this matter for further development. The issue of entitlement to service connection for pancreatitis and cholelithiasis is REMANDED to the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. Residuals of a right ankle injury, to include arthritis, are productive of pain with additional functional loss so as to most nearly approximate marked limitation of motion without a showing of a severe foot injury. 2. Residuals of a left ankle injury, to include arthritis, are productive of pain with additional functional loss so as to more nearly approximate marked limitation of motion without a showing of a severe foot injury. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent for residuals of a right ankle injury, to include arthritis, have been met throughout the course of the appeal. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Code 5271 (2007). 2. The criteria for an evaluation of 20 percent for residuals of a left ankle injury, to include arthritis, have been met throughout the course of the appeal. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.45, 4.71a, Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). This appeal arises from disagreement with the initial evaluations following the grants of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The Board finds that there has been compliance with the assistance requirements of the VCAA. All available service medical, VA, and private treatment records have been obtained. No other relevant records have been identified. The veteran was afforded several examinations. Based upon the foregoing, no further action is necessary to assist the claimant with the claim. Evaluations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (2007). The percentage ratings contained in the 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 (2007). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet.App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2007). Diagnostic Code 5003 (5010) provides that 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 (DC 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned where X-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion of the ankle and a 20 percent rating for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. A moderate foot injury warrants a 20 percent evaluation. A severe foot injury warrants a 30 percent evaluation. Actual loss of use of the foot warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2007). Service treatment records show that in May 1976 the veteran sprained the right ankle playing basketball. An X-ray examination revealed no fractures. The ankle was placed in a cast, which was removed in June 1976. On reevaluation in August 1976, the ankle was described as normal. An X-ray examination of the left ankle showed soft tissue swelling with evidence of previous trauma. There were probable accessory ossicles, but an avulsion fracture could not be ruled out. In April 1998, the veteran received private treatment for complaints of swollen and painful feet after they were exposed to water the entire weekend. There was mild swelling of both feet. An X-ray examination revealed a small exostosis in the right heel. No other abnormality was seen. At the time of a June 1999 VA examination, the veteran reported injuries to both ankles while in service, with subsequent pain and swelling. Physical examination revealed swelling in both feet. X-rays taken of the knees in December 1999 revealed that the right ankle had a one centimeter ossification projected inferior to the distal end of the right fibula. There was a tiny focal cortical prominence above the medial malleolus on the right. A tiny bone spur was present at the distal medial right tibial diaphyseal cortex, 8 cm cranial to the ankle joint on the right. The right calcaneus had a well margined plantar spur. Minimal degenerative changes were present at the right talocalcaneal articulation. There was no acute fracture and no abnormal tissue swelling on the right. The left ankle had irregular bony buttressing and cortical hyperostosis over the medial malleolus. In addition, there was a 6 to 7 mm in diameter ossification inferior to the top of the left fibula. An 11 mm in diameter ossification projected posterior to the left talus, which possibly represented an atypical left trigonum verus post-traumatic osteocartilaginous body. There was also possible slight soft tissue swelling over the lateral malleolus of the left ankle. The examiner indicated that the veteran had post-traumatic and degenerative changes as described and stated that these findings were consistent with remote trauma. The veteran was afforded a VA examination in December 2004. The veteran reported sprained ankles in service. The examiner noted that the veteran had severe venous insufficiency and was wearing thigh high compressive stockings. The examiner stated that from the veteran's overall description, it appeared that his problem was more related to venous insufficiency than arthritis. Physical examination revealed that the veteran had quite large tortuous varicose veins extending from his greater saphenous, bilaterally, up to the lower portions of his thigh, bilaterally. He had marked tenderness to the ankles and to the medial sides of his knees, where the veins were quite engorged. This was despite wearing thigh high support stockings. Ankle joint examination was limited due to the tender discomfort caused by the veteran's stasis. He was extremely tender with any palpation of the areas around his ankle and when asked to describe the pain, he stated it was more superficial and it was consistent with the large tortuous veins that were present there. X-ray examination revealed residual moderate degenerative changes from previous trauma involving both ankles joints, and the medial and lateral malleoli. In stance, the veteran's calcaneus was vertical to slightly everted, more likely due to moderate pes planus. The examiner stated that it was clear from the examination that the veteran's complaints were related to his venous stasis and not to degenerative joint changes. At his February 2006 hearing, the veteran reported experiencing 7/8-10 pain in his ankles on an everyday basis when walking. He stated that he did not walk far due to his ankles. He reported that he tolerated the pain but it was there on a daily basis. The veteran testified that he had limited range of motion for his ankles. At the time of a September 2006 VA examination, the veteran reported that he was currently unemployed but that this was not due to his joint problems. He was able to do his activities of daily living, including shopping, but could not walk long distances and this limited him. He did not use any assistive devices. The veteran was also noted to have other medical and psychiatric problems, which also limited his ability to do various activities related to his work. He had significant venous stasis and had to use compressive stockings all the time. This further limited mobility in joints of the lower extremities. The veteran reported that he limped a lot. He stated that he did not walk a lot as the legs, particularly the ankles, tended to go out on him on various occasions. There was persistent swelling in both legs and ankles, for which he used compressive stockings. As to flare-ups, the veteran reported having pain all the time, but it occasionally flared up when he walked a fair bit, and these flare-ups lasted approximately 30 to 40 minutes. He would have to stop, rest, and lay down. He took Motrin and aspirin for the pain in his ankles. The veteran was also on long term medication for his swelling and he had painkillers for generalized pain. Physical examination revealed that the veteran walked with a shuffling gait and a limp favoring his right ankle. He was able to stand on his toes but had difficulty standing on his heels. He was able to half squat. Examination of the lower limbs revealed significant varicosities of the whole lower limb on both sides. The veteran had swelling with edema of the ankles and feet. This was controlled with compression stockings, which the veteran was using at the present time. Examination of the right ankle revealed swelling so that the bony points were difficult to palpate, but there was generalized tenderness, slightly more on the medial side as opposed to the lateral side. The veteran had evidence of a previous surgery with a well healed scar in relation to the navicular bone. This appeared to be from an exostectomy that had been done 3 to 4 years earlier. Range of motion for the ankle was 5 degrees of dorsiflexion and 30 degrees of plantar flexion with pain, but it was difficult to assess because of swelling and stasis. The ankle seemed stable but stressing the lateral ligaments caused significant pain. The veteran also had pain with subtalar and midtarsal movements, more likely arthritic. He had mild limitation there. With regard to DeLuca factors, repeated range of motion did not decrease his range of motion but it did cause fatigue. He also had lack of endurance. The examiner stated that the veteran's fatigue and lack of endurance were slightly more than his pain. With regard to the left ankle, the veteran had the same swelling and edema that was on the right. There was generalized tenderness this time, more on the lateral ligament of the ankle. Range of motion was dorsiflexion 5-10 degrees and plantar flexion 25-30 degrees, with pain being caused by both. The midtarsal and subtalar movements were of some mild limitation, but did cause pain. There was significant pain on the lateral side when the ankle was stretched. Drawer sign in both ankles was negative. Because of the swelling it was difficult to get an exact read on the range of motion. With regard to the DeLuca factors, repeated motion did not decrease the range of motion significantly. There was a possible lack of five degrees with plantar flexion. This was more the result of fatigue and lack of endurance. There was no incoordination. The reflexes in the lower limbs showed he had 1+ knee reflexes. The examiner was unable to elicit ankle reflexes but this was as a result of the significant swelling that he had. With regard to sensory changes, it appeared that he had some evidence of peripheral neuritis, in that he had hypesthesia distally from the mid-calf downwards. The examiner stated that he had reviewed x-rays taken and there was no evidence of recent injury. The soft tissue swelling about the lateral malleolar, bilaterally, was seen again. There was also re-demonstration of the previously seen post- traumatic joint changes. The examiner stated that he had osteoarthritic changes on both ankles and that these had clinically caused him to have increased symptoms. It was difficult to assess exactly how much was from the edema that he had from his other medical conditionis and the venous stasis. The examiner noted that the veteran had clinically increased symptoms but there was no significant decrease in range of motion or other DeLuca factors. He indicated that he was not able to quantify degree of decrease in range of motion because of swelling and the use of compression stockings. He did have some symptoms of instability in the ankles. The compression stockings that he used on a regular basis did limit his range of motion and caused pain when he attempted range of motion. The veteran always seemed to have some weakness of his dorsiflexion, bilaterally, and also some evidence of peripheral neuropathy, particularly the distal legs and feet. The veteran reported that he definitely had hypesthesia in these areas. The examiner stated that this should be investigated further. Analysis The veteran has continuously complained of ankle pain since his original request for service connection. Ankle pain and limited range of motion has been reported at the time of each VA examination. There were no actual reports of ranges of motion at the time of any VA examination until the most recent VA examination in September 2006. At that time, the veteran was noted to have no more than 10 degrees (5 degrees in the right ankle) of dorsiflexion and no more than 30 degrees of plantar flexion in his left or right ankle, with a decrease of 5 degrees of plantar flexion after repetitive movement in the left ankle. This equates to 50 percent loss of normal dorsiflexion on the left, and a 75 percent decrease from normal on the right, and an almost 50 percent loss of plantar flexion for each ankle. The examiner found additional functional limitation that he was unable to quantify. The overall loss of motion can be viewed as marked. A 20 percent rating is therefore warranted under Code 5271 for each ankle. . A 20 percent rating is the highest available under Code 5271, and a 20 percent rating is also the highest available under Codes 5272, 5273, and 5274. Ratings in excess of 20 percent are available under Code 5270 for ankylosis, but there is no evidence of ankylosis. The veteran retains significant motion in both ankles. The injuries to the veteran's ankles appear to have healed after a short period of initial treatment and he was able to complete active service with no further treatment or disability being noted. He currently has marked limitation of motion, but is able to conduct activities of daily living and can walk less than long distances without the need for assistive devices. For these reasons, the evidence is against a finding that the veteran has severe injuries of either foot. Hence an increased rating is not warranted under Diagnostic Code 5284 during any period since the effective date of service connection. The ratings provided in the rating schedule are generally deemed adequate to compensate for disability. 38 C.F.R. § 3.321(a) (2007). Under the provisions of 38 C.F.R. § 3.321(b) (200), in exceptional cases an extraschedular evaluation can be provided in the interest of justice. The governing norm in such a case is that the case presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impracical the application of regular schedular standards. In this case, the veteran is reportedly in an employment training program and his unemployment has been attributed to conditions other than those at issue in this decision. There have been no reports that the ankle disabilities interfere with employment. There have also been not reports of hospitalization for treatment of the ankle disabilities. An exceptional disability picture has not been demonstrated. Referral for consideration of extraschedular ratings is, therefore, not warranted. ORDER A 20 percent disability evaluation for residuals of a right ankle injury, to include arthritis, from March 10, 1998, is granted. A 20 percent disability evaluation for residuals of a left ankle injury, to include arthritis, from March 10, 1998, is granted. REMAND In its June 2006 remand, the Board noted that at his February 2006 hearing, the veteran testified that between 1977 and 1980 he was hospitalized and received outpatient treatment for pancreatitis at the U.S. Army Hospital at Fort Ord, California. The Board observed that records of this treatment had not been obtained. It instructed that an attempt should be made to obtain the records of the veteran's treatment for pancreatitis at the U.S. Army Hospital at Fort Ord, California, from 1977 to 1980. In September 2006, the National Personnel Records Center was asked to furnish records from Ft. Ord Hospital for the period from February 1980 to December 1999. In response to the request, NPRC indicated that there were no records available for the period from 1980 to November 1999 and that the Fort Ord base had closed in March 1994. It does not appear that records were requested for the period from 1977 to 1980. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. Stegall v. West, 11 Vet. App. 268, 271 (1998). "Where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. Accordingly, the case is REMANDED for the following action: 1. Request records of the veteran's treatment at the U.S Army Hospital Fort Ord, California from February 1977 to February 1980. All attempts to obtain these records should be documented. If the records are unavailable, this should be documented. 2. If the claim is not fully granted, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs