Citation Nr: 1300316 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 11-20 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for residuals of a right ankle injury, including fractures of the distal tibia and fibula, currently assigned a 30 percent evaluation. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from March 1944 to March 1946. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of October 2009. In April 2011, the Veteran testified at a hearing conducted before a Decision Review Officer (DRO) at the RO. Also, in October 2012, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. Transcripts of both proceedings have been associated with the Veteran's claims folder. At the October 2012 hearing, the Veteran testified that he had injured his right knee and hips because of his falls. It was discussed that the Veteran would be filing a separate claim for service connection for these additional injuries of the right knee and right hip with the RO that day. Accordingly, the Board will not separately refer these issues to the RO for initial development. Please note that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Residuals of a right ankle injury, to include fractures of the right tibia and fibula, are manifested by X-ray evidence of ankylosis with little remaining motion, as well as extensive post-traumatic deformity of the mortise joint and talocalcaneal articulation with almost total obliteration of the mortise joint space and the posterior talocalcaneal joint space. CONCLUSION OF LAW The criteria for a 40 percent residuals of a right ankle injury, including fractures of the distal tibia and fibula, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION At the October 2012 hearing, the Veteran testified that he would be satisfied with an award of 40 percent for his service-connected right ankle disability. See October 2012 hearing transcript at 15, 20. Indeed, a 40 percent rating for the service-connected right ankle disability is the maximum evaluation provided for an ankle disability. See 38 C.F.R. § 4.68 (the combined rating for disabilities below the knee shall not exceed 40 percent, the rating for a below the knee amputation). Therefore, the grant of a 40 percent rating herein is a complete grant of the benefit sought in this case. Accordingly, and in view of the favorable outcome of this appeal, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) need not be discussed. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection is in effect for the residuals of a right ankle injury, including fractures of the distal tibia and fibula, which occurred in July 1944. The condition was rated 10 percent disabling upon his discharge in March 1946, but has been rated as 30 percent disabling since October 1946. The Veteran maintains that this disability has progressively worsened. VA outpatient treatment records show occasional treatment for right ankle complaints. In November 2008, the Veteran complained of increased pain and swelling. On a VA examination in September 2009, the Veteran reported daily pain, with any and all weight bearing on the left foot. The examiner stated that, since the Veteran was retired, there was no affect on occupation. He was also able to carry out all desired function of daily living, to include driving. His limitations were in the way of endurance. He could not walk longer than about 15 minutes, when he had to get the weight of the foot and ankle for a rest. On examination, there was no evidence of nonunion. His gait was abnormal, favoring his left ankle. Ankylosis was not present, and there was no shortening of the right leg. Residual scars were barely perceptible, non-tender, superficial, and did not affect motion or function. Range of motion studies were obtained, but will not be reported because the Board finds they are unreliable. In this regard, the limitation of motion as reported on the examination pertained to the left ankle, whereas the normal findings were reported to involve the service-connected right ankle. Moreover, specific ranges of motion are not included in the diagnostic criteria pertaining to motion of the ankle. See 38 C.F.R. § 4.71a, diagnostic code 5271. The examiner concluded that the Veteran had a markedly deformed right ankle/distal leg. It had the appearance of a "Charcot" joint, although there was no associated instability or loss of sensation. The size of the ankle was about twice normal, and there was marked bony prominence of the medial malleolus in particular. There was "marked decrease in" or "little" range of motion in the ankle, but enough for him to be functionally ambulatory without much limp or impediment. He was totally independent functionally in his daily activities. According to a VA outpatient treatment record dated in November 2009, the Veteran had had no falls during the past 12 months. In July 2010, he had an unsteady gait, and difficulty with balance. He denied recent falls due to ambulatory difficulties. In October 2010, the right ankle was noted to be swollen with some deformity. He had been advised to have right ankle surgery, but had declined. At the April 2011 hearing before a DRO, the Veteran stated that he had difficulty with the ankle locking up on him, severe swelling, and difficulty walking on it on many occasions. He said that he did not seek treatment because there was nothing they could do to help him. He testified that when he stood up, if he started to walk immediately, the ankle would sometimes give way, causing him to fall. He said that the VA doctors had wanted to operate on his ankle, but he was afraid to in view of his heart condition and other surgical experiences. On a VA examination in May 2011, the Veteran stated his right ankle condition had progressively worsened since onset. He did not currently receive treatment for the condition. His gait was antalgic, but there was no other evidence of abnormal weight bearing. On examination, there was no instability or tendon abnormality in the right ankle. There was mild valgus angulation of approximately 5 degrees. In the right ankle, dorsiflexion was from 0 to 10 degrees and plantar flexion was from 0 to 25 degrees. Corresponding range of motion in the left ankle was dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. There was no evidence of pain or other limitations after three repetitions. The examiner stated that there was ankle joint ankylosis, which was stable. The ankle was not fixed in abduction, adduction, inversion, or eversion. The circumference of the right ankle was 3.5 cm greater than the left, which the examiner attributed to peripheral edema. Deformity was noted in the right ankle. X-rays taken in November 2008 were reviewed and showed screws in place as well as ankylosis of the mortise joint and portions of the talocalcaneal joint most likely related to post-traumatic degenerative changes. It was noted that there was extensive post-traumatic deformity of the mortise joint and talocalcaneal articulation with almost total obliteration of the mortise joint space and the posterior talocalcaneal joint space. There were two threaded metallic screws embedded in the lateral malleolus, anchoring it to the tibia. A third screw was fractured. There was a marked medial tilt to the mortise joint with a result valgus deformity. There was also a prominent posterior plantar calcaneal spur, and some spurring of the os calcis. The diagnosis was degenerative joint disease, right ankle, associated with malunion of the right tibia and fibula with residual of pain and decreased range of motion. He had decreased mobility and pain. Post-surgical scars were superficial, non-painful, with no skin breakdown , pain, o r other disabling effects. At 0.2 cm by 7.0 cm and 1.0 cm by 7.0 cm, they measured less than 39 square cm, and, in any event, were linear, and were not deep. At the October 2012 hearing, the Veteran and his daughter provided testimony concerning the Veteran's right ankle condition. During the hearing, the Veteran demonstrated the limited motion in the ankle. He said that he could stand on his toes if he was supported, which his daughter contradicted. His daughter indicated that he minimized his falls because he wished to remain independent. The Veteran and his daughter also indicated that the Veteran was not able to move his ankle actively as much as in the examination, and he said that the examiner had moved the ankle during the examination. The Veteran indicated that although he had a cane and a walker, he preferred to stabilize himself using walls, chairs, and other objects. The undersigned was able to observe swelling and very little motion. He reported constant pain in the ankle. It was stated in the hearing that a grant of 40 percent would satisfy the appeal. The Veteran currently is rated as 30 percent disabled under Diagnostic Code 5262, which concerns impairment of the tibia and fibula. Under that diagnostic code, a 30 percent evaluation is warranted for malunion with marked knee or ankle disability, while a 40 percent evaluation contemplates nonunion with loose motion requiring a brace. Thus, the current 30 percent rating under Diagnostic Code 5262 requires malunion, with marked ankle disability, which is clearly shown. For a higher rating under that code, however, nonunion, with loose motion, is contemplated. The Veteran does not have loose motion; instead, he has extremely limited motion, and the most recent VA examination found that ankylosis was present. Diagnostic code 5270 provides for ratings based on ankylosis of the ankle. In order to increase the Veteran's disability rating to 40 percent, the evidence of record would have to show ankylosis in the Veteran's ankle in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, diagnostic code 5270. Ankylosis is immobility and consolidation of a joint due to disease, injury or surgical procedure. See Cullen v. Shinseki, 24 Vet. App. 74 (2010). Although the Veteran does not have fixation of the ankle to more than 40 degrees of plantar flexion, or to more than 10 degrees of dorsiflexion, he has been determined to have ankylosis. X-rays have shown extensive post-traumatic deformity of the mortise joint and talocalcaneal articulation with almost total obliteration of the mortise joint space and the posterior talocalcaneal joint space. One of the screws anchoring the joints has fractured. There is also a marked medial tilt to the mortise joint with a resulting valgus deformity. Valgus is defined as bent or twisted outward. Dorland's Illustrated Medical Dictionary 2048 (31st ed. 2007). Under Diagnostic Code 5270, a 40 percent rating is also warranted for an abduction or eversion deformity. Abduction involves the drawing away from the medial plane. Id. at 2. Eversion is a "turning outward, as of the sole of the foot." Id., at 663. Although these are not interchangeable terms for the same finding, it is also permissible to rate a disability under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board finds that the documented findings, including valgus and other deformity, can sufficiently be analogized to an abduction or eversion deformity, such as to warrant a 40 percent rating based on ankylosis of the ankle, under Diagnostic Code 5270. The Board also concludes that changing the Diagnostic Code from 5262 to 5270 does not violate the protection of either service connection or the 30 percent rating for the Veteran's ankle disability, in effect since 1946. See 38 C.F.R. §§ 3.951(b), 3.957. Regarding service connection, the change in diagnostic code does not change the determination that the Veteran's distal tibia and fibula fracture was incurred in his military service, or that he is entitled to compensation for the disability he incurred as a result. See Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011). In this case, both diagnostic codes refer to disability involving ankle impairment. As noted in Read, disability of the musculoskeletal system is more generally associated with the inability to perform certain acts. Id.; see also 38 C.F.R. § 4.40. In this case, the disability has been rated under diagnostic code 5262, which identifies malunion as a specific condition, for ratings from 10 through 30 percent, with the rating based on the level of ankle impairment. In contrast, for a higher rating of 40 percent under that diagnostic code, rather than malunion, nonunion is contemplated; instead of overall impairment, loose motion requiring a brace is required. While impairment includes loose motion, loose motion does not include all impairment, in particular, the increasingly limited motion, to the point of ankylosis. Thus, changing the diagnostic code associated with the Veteran's tibia and fibula fracture residuals to more accurately determine the benefit to which the Veteran may be entitled is not a severance of service connection. See Read. Similarly, the change in diagnostic code preserves the minimum level of 30 percent which is protected, under 38 C.F.R. § 3.951(b). In this regard, the inclusiveness of the ankle "impairment" contemplated under diagnostic code 5262, for ratings from 10 through 30 percent precludes a separate rating based on ankylosis, limitation of motion, or other impairment, since the rating includes all impairment resulting from malunion. The medical evidence establishes that the current ankylosis results from traumatic deformity which has developed as a symptom of the malunion. Thus, to rate the Veteran under diagnostic code 5270 instead of 5262 in this case is a reflection of the progression of the level of disability from malunion to more closely approximating ankylosis. In this regard, the direction of the disability has been toward fixation, not nonunion with loose motion. Although these are different manifestations, unlike the situation in Murray v. Shinseki, 24 Vet. App. 420 (2011) (involving instability and arthritis of the knee), switching to diagnostic code 5270 does not omit consideration of any symptoms which were previously considered as part of the service-connected disability picture. In sum, the Board finds that the symptomatology associated with the Veteran's residuals of the right distal and fibula fracture now more closely approximates the criteria for a 40 percent rating, based on ankylosis with fixation of eversion or abduction, and very little other motion. In reaching this determination, the Board has considered all associated pain and functional impairment. Further, as discussed above, the change in diagnostic code is required because the disability has, in essence, progressed from malunion to extensive post-traumatic deformity with ankylosis, and very little motion possible. Therefore, there is no basis for a higher rating under diagnostic code 5262, which requires nonunion with loose motion for a higher rating. As such, the change in diagnostic code does not constitute either a severance of protected service connection, or a reduction in a protected rating. In reaching this determination, the benefit-of-the-doubt rule has been applied. 38 U.S.C.A. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also finds that evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. 38 C.F.R. § 3.321 (2012). The current evidence of record does not demonstrate that the Veteran's service-connected right ankle disability has resulted in frequent periods of hospitalization or in marked interference with employment. Id. In this regard, it is undisputed that this service-connected disability has an adverse effect on employability, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2012). Here, the very problems reported by the Veteran are specifically contemplated by the criteria discussed above. 38 C.F.R. § 4.10. Thus, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Furthermore, the Veteran does not claim to be unemployable due solely to his service-connected right ankle condition, nor does the evidence indicate such. Therefore, a claim for total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is not inferred as part of the current claim for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to a 40 percent rating for residuals of a right ankle injury, to include fractures of the distal tibia and fibula, is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs