Citation Nr: 1237109 Decision Date: 10/25/12 Archive Date: 11/09/12 DOCKET NO. 08-13 152 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of a fracture of the right proximal fibula and distal tibia with traumatic arthritis, from the initial grant of service connection. 2. Entitlement to an evaluation in excess of 10 percent for limitation of motion of the right ankle, secondary to the service-connected right leg fracture disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from March 1971 to February 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2007 decision by the RO which, in part, granted service connection for fracture of the right tibia and fibula and assigned a 10 percent evaluation, effective from February 17, 2006; the date of receipt of claim. 38 C.F.R. § 3.400(b)(2). In May 2010, a hearing was held at the RO before the undersigned member of the Board. In July 2010, the Board, among other things, denied an increased rating for the right leg disability, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2011 joint motion for remand (JMR), the Court vacated, in part, the Board's decision as to increased rating claim and remanded the issue for compliance with the terms of the joint motion. The Board remanded the appeal for additional development in August 2011. By rating action in July 2012, the AMC granted a separate 10 percent evaluation for limitation of motion of the right ankle secondary to the service-connected residuals of fracture of the right proximal fibula and distal tibia. As the additional disability is part and parcel of the claim for an increased rating for the right leg disability, the Board has jurisdiction and must adjudicate the claim for a higher evaluation for the right leg and ankle disabilities. FINDINGS OF FACT 1. Since service connection was granted, the Veteran's right knee disability is manifested by a well-healed fracture site, without compensable limitation of motion or instability of the knee and no additional functional limitation due to pain, incoordination, fatigability, on repetitive use or during flare-ups. 2. Since service connection was granted, the Veteran's right ankle disability is manifested by limitation of motion without swelling, instability or laxity; additional functional limitation due to pain, fatigability, incoordination, on repetitive use or during flare-ups is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for residuals of a fracture of the right proximal fibula and distal tibia with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, including Diagnostic Codes 5010-5260 (2011). 2. The schedular criteria for an initial evaluation in excess of 10 percent for the right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, including Diagnostic Code 5271 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the merits of the Veteran's claims, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2011). Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in March 2006 and June 2007. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Kent v. Nicholson, 20 Vet. App. 1 (2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify. With respect to the duty to assist in this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA medical records have been obtained and associated with the claims file. The Veteran was examined by VA twice during the pendency of this appeal and testified at a hearing at the RO before the undersigned in May 2010. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Concerning the May 2011 Travel Board hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, while the undersigned VLJ did not discuss the bases of the prior determinations, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating and to identify any pertinent evidence not currently associated with the claims. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Increased Ratings In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.10, 4.40, 4.45. Factual Background & Analysis The Veteran contends that he has had chronic pain and numbness in his right leg and ankle for many years, and believes that a higher evaluation is warranted for his right leg disability. When examined by VA in August 2006, the Veteran complained of chronic pain, stiffness, locking, and popping in the right knee but denied any weakness, instability, fatigability, or lack of endurance. Extension/flexion of the right knee was from zero to 140 degrees. Dorsiflexion of the right ankle was from zero to 20 degrees, and plantar flexion was from zero to 40 degrees with tenderness and pain from 30 to 40 degrees after repetitive motion. There was tenderness to palpation along the medial aspect of the right knee and the proximal fibula and distal tibia of the right ankle. The Veteran's gait and posture while walking and standing was normal, there was no evidence of unusual shoe wear, and there was adequate alignment of the os calcis with the tibia and fibula. The examiner opined that there was an additional loss of 10 degrees of plantar flexion in the right ankle due to pain on repetitive motion. X-ray studies of the right knee revealed a deformity and remodeling of the proximal fibula with a callus formation consistent with a remote healed fracture. There was no evidence of an acute fracture, dislocation, or lithoblastic lesion in the right knee and the joint space was well maintained with minimal patellar spurring. There was a healed fracture in the distal tibial diaphysis but no acute fracture or dislocation, and the ankle mortis was intact. The impression included residuals of right lower leg fracture of the proximal fibula and distal tibia with mild residuals, post traumatic arthritic changes in the right ankle and right knee. In an addendum report, dated in July 2007, the VA examiner opined that the Veteran's bilateral ankle and knee problems and leg numbness was less likely than not related to the service-connected right leg fractures, and was due to the natural aging process and genetic factors. When examined by VA in September 2011, the Veteran reported catching, locking and swelling in his right knee and numbness on the tops of both feet, but denied any swelling in the right ankle. The Veteran reported that he uses a cane because he was afraid of falling due to his right knee and lower back problems, but did not describe any flare-ups or incapacitating episodes. On examination, there was mild patellar crepitus in the right knee, but no instability or subluxation. The right knee was stable to varus valgus stress testing, there was positive patellar grind testing, bilaterally. The Veteran had painless range of motion from zero to 135 degrees in the right knee with crepitus, and there was no evidence of additional limitation of motion due to pain, fatigue, weakness, incoordination or on repetitive movement. Weight bearing x-rays showed the fibula and tibia were well aligned with no acute fractures and the soft tissues were unremarkable. There was evidence of an old healed proximal fibular fracture. The radiologist commented that the fibular fracture was not in the knee joint and that there was no evidence "whatsoever" of arthritis in the knee or any dislocations or mal tracking of the patella. There was no evidence of obvious deformity of the right ankle, with very mild minimal deformity noted at the distal tibia which is approximately three inches proximal to the ankle joint. The ankle was stable to inversion and eversion, drawer testing was negative, the Achilles was vertical and leg lengths were equal. Motor function was 5/5 in all muscle groups, sensation was intact, and there was no evidence of muscle atrophy. Dorsiflexion was from zero to 10 degrees with inversion from zero to 40 degrees without pain, fatigue, weakness, incoordination or on repetitive movement. There was no crepitus and the Veteran had a non antalgic gait. X-ray studies showed an old healed fracture deformity of the distal right tibia, the ankle mortis was intact, and there was no evidence of degenerative changes in the ankle joint. The examiner indicated that while the Veteran reported intermittent flare-ups, there was no way to quantify that in terms of additional degrees of range of motion loss and that any attempt to do so would be purely speculative. The examiner also opined that the Veteran's reported numbness, tingling and muscle cramps in the lower extremities were directly related to his low back disability and not associated with his right knee or ankle. There was no evidence of arthritis in the right knee or ankle, and the fibula and tibia fracture sites were well healed and in good position and alignment, and were not associated with the knee or ankle joints. In an addendum report, dated in June 2012, the examiner indicated that a current x-ray study of the right ankle showed no acute abnormalities or evidence of arthritis, and that there were no organic changes in the ankle when compared with an August 2006 x-ray study. The examiner also indicated that there was no additional limitation of motion in the right knee or ankle on repetitive testing, and opined that it was less likely than not that a right meniscus tear was due to or associated with the healed fibula and tibia fractures. The examiner commented that the degenerative tear of the right meniscus was common in someone over 60 years of age and was due to normal wear and tear. The evidentiary record also includes numerous VA and private medical records showing treatment for various maladies from 1996 to 2011. However, the reports did not include any additional clinical or diagnostic finding different from the VA examination reports. As noted above, the Veteran was recently granted a separate 10 percent rating for limitation of motion of the right ankle secondary to the service-connected residuals of fracture of the right proximal fibula and distal tibia, by the AMC in July 2012. Given that the rating criteria for the right leg disability, which is evaluated under Diagnostic Code (DC) 5262, contemplates some degree of impairment of the knee and/or ankle, it would appear that the original 10 percent rating is considered to contemplate knee impairment. In any event, pursuant to DC 5262, a 10 percent evaluation is assigned when there is malunion of the tibia and fibula with slight knee or ankle disability; 20 percent with moderate knee or ankle disability; 30 percent with marked knee or ankle disability, and 40 percent for nonunion of the tibia or fibula with loss motion requiring brace. DC 5010 pertains to traumatic arthritis, which is rated under DC 5003, the code for degenerative arthritis. 38 C.F.R. § 4.71a, DC 5010 (2011). DC 5003 specifies 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. Normal range of motion of the knee (extension/flexion) is from zero to 140 degrees, respectively. The normal range of motion for an ankle joint on dorsiflexion is from zero to 20 degrees with plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II (2011). The knee and ankle are each major joints. 38 C.F.R. § 4.45. Other potentially applicable rating codes which may provide a basis for assigning a higher evaluation include DC 5256 and 5270, which requires ankylosis of the knee and ankle joint, respectively. DC 5257 provides a 10 percent evaluation for slight recurrent subluxation or lateral instability of the knee , a 20 percent evaluation for moderate recurrent subluxation or lateral instability of the knee, and 30 percent for severe symptoms. DC 5258 provides for a 20 percent evaluation for dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the knee joint. DC 5260 allows for a 10 percent evaluation when flexion of the knee is limited to 45 degrees; 20 percent when flexion is limited to 30 degrees, and 30 percent when flexion is limited to 15 degrees. DC 5261, provides for a 10 percent evaluation when extension is limited to 10 degrees, 20 percent when extension is limited to 15 degrees, 30 percent for extension limited to 20 degrees. However, none of these codes are applicable based on the facts of this case, as described below. In this case, the Veteran does not demonstrate objective evidence of a loss of motion in the right knee under DCs 5260 or 5261 sufficient to warrant the assignment of a rating in excess of 10 percent based on limitation of motion. Extension has been full, and flexion far exceeds 60 degrees. While there was some tenderness and mild crepitus in the right knee, there was no evidence of effusion, instability, subluxation or a limitation of motion to the degree that would warrant an evaluation higher than currently assigned. Thus, a higher evaluation for the right leg disability based on limitation of motion or instability under DCs 5257, 5260 or 5261 is not warranted. Likewise, with the record showing healed fractures, and only tenderness medically associated with the proximal fibula fracture, moderate impairment as contemplated by DC 5262 is not shown. The Veteran's right ankle disability is rated 10 percent disabling under DC 5271, which provides for a 10 percent evaluation for moderate limitation of motion of the ankle, and 20 percent for marked limitation of motion. The clinical findings on the VA examinations during the pendency of this appeal did not show that the Veteran had more than moderate limitation of motion. Thus, an evaluation in excess of the 10 percent is not warranted. In this regard, a separate rating for the ankle under DC 5262, would constitute pyramiding, evaluating the same disability under multiple diagnoses, a practice to be avoided. 38 C.F.R. § 4.14. The Board has also examined all other potentially applicable diagnostic codes pertinent to the knee and ankle. However, DCs 5256 and 5270 requires ankylosis of the knee and ankle joint, respectively, which is not present in this case. DC 5257 provides for evaluation when there is recurrent subluxation or lateral instability which, as indicated above, has never been demonstrated. DC 5258 provides for a 20 percent rating when there is dislocation of cartilage with frequent episodes of locking, pain, and effusion. This, likewise, is not shown. The Board must also consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, while the Veteran asserted that he experiences flare-ups of knee pain daily, the objective findings from the two VA examinations conducted more than five years apart, did not show any additional functional limitation of motion or instability in the right knee, or ankle beyond that contemplated in the ratings assigned. It is acknowledged that the Veteran has subjective complaints of pain affecting his ability to engage in some activities. However, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston, 10 Vet. App. at 85 (1997). Here, there was no objective evidence of additional functional loss of use due to pain or on repetitive use of the right knee or ankle to the degree necessary for the assignment of a rating in excess of 10 percent. Absent a medical finding of additional functional loss of use, the Board finds that the level of functional impairment is adequately compensated by the 10 percent evaluations currently assigned for the right leg and right ankle disabilities. The percentage ratings in VA's Schedule for Rating Disabilities represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2011). As there is no objective evidence of any additional functional loss of use due to pain or on flare-ups to the extent necessary for the next higher rating based on limitation of motion, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for a higher rating. Applying all of the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's present impairment of the right leg and right ankle disabilities do not suggest that he has sufficient symptoms so as to warrant an evaluation in excess of the 10 percent ratings currently assigned for each joint, at any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). For the reasons discussed above, the Board finds that the manifestations of the Veteran's right leg disability are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestation related to the service-connected disabilities are unusual or exceptional. The schedular rating criteria adequately contemplate the degree of impairment caused by the right leg and ankle disabilities, and provides for an increased ratings for additional symptoms. In view of this, referral of this case for extraschedular consideration is not in order. Additionally, the Board notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part of the claim for benefits for the underlying disability. Id. Here, the Board finds that a claim for a TDIU was not expressly raised by the Veteran or reasonably raised by the record. The Veteran is 65 years old and was employed full-time as a truck driver until 2008, when he was diagnosed with mantle cell lymphoma. Moreover, the objective findings of record do not show or otherwise suggest that his right leg and ankle disabilities would preclude substantially gainful employment. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the Veteran's claim. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An initial increased rating for residuals of a fracture of the right proximal fibula and distal tibia with traumatic arthritis is denied. An initial increased rating for a right ankle disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs