Citation Nr: 1301455 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-00 284A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for fibromyositis and degenerative joint disease of the right knee, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for fibromyositis and degenerative joint disease of the right ankle, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to December 1966, and from June 1976 to November 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision by the RO that, in pertinent part, denied a rating in excess of 10 percent for fibromyositis of the right knee and right ankle, denied service connection for tinnitus, and declined to reopen a previously denied claim for service connection for right ear hearing loss. In March 2011, the Veteran testified at a Board before the undersigned Veterans Law Judge at the RO. In July 2011, the Board granted service connection for tinnitus and reopened the previously denied claim for service connection for right ear hearing loss. The claim for an increased rating for fibromyositis of the right knee and right ankle, and the underlying matter of the Veteran's entitlement to service connection for right ear hearing loss, were remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. In August 2012, while the case was in remand status, the AMC established service connection for right ear hearing loss, thereby granting the full benefit sought on appeal with respect to that issue. The AMC also recharacterized the service-connected disabilities of the Veteran's right knee and right ankle to include degenerative joint disease, and established separate 10 percent ratings, each, for the right knee and ankle, effective from December 19, 2007 (the date of receipt of the Veteran's claim for increased rating). As a result, the issues presented for the Board's review have been recharacterized as set forth above, on the title page. Documents added to the record subsequent to the Board's July 2011 remand show that the Veteran filed a VA Form 9 (Appeal to Board of Veterans' Appeals) in May 2011 with respect to the matter of his entitlement to service connection for an acquired psychiatric disorder; thereby perfecting an appeal of that matter. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. However, it does not appear that the RO has as of yet completed action on that issue, inasmuch as the RO has not yet certified the issue to the Board, and the Veteran's request for a Board hearing on that issue remains pending. The Board will consider the issue after the RO completes action on the issue and, if the claim remains denied, certifies that matter to the Board. The Board's present decision is limited to the matter of the Veteran's entitlement to an increased rating for fibromyositis and degenerative joint disease of the right ankle. For the reasons set forth below, the matter of his entitlement to an increased rating for fibromyositis and degenerative joint disease of the right knee is being REMANDED to the RO, via the AMC, for additional development. FINDINGS OF FACT 1. The Veteran's service-connected right ankle disability is manifested by complaints of tenderness and pain on use; the ankle has been described as objectively tender on occasion, and pain on motion has been noted. 2. The Veteran has consistently demonstrated painless, active dorsiflexion in the right ankle to at least 15 degrees, and plantar flexion to a full 45 degrees; repetitive movement has not been shown to have any further effect on function. 3. The Veteran's right ankle is not ankylosed; nor is his subastragalar or tarsal joint. 4. The Veteran's right ankle disability is not manifested by malunion of the os calcis or astragalus, and he is not shown to have undergone astragalectomy. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for fibromyositis and degenerative joint disease of the right ankle have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5021, 5270, 5271, 5272, 5273, 5274 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks an evaluation in excess of 10 percent for his service-connected right ankle disability. He says that the ankle is painful. I. Preliminary Considerations On November 9, 2000, the President signed into law 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, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and assist claimants. A. The Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (now codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA ask the claimant to provide any pertinent evidence in his possession). Ordinarily, notice with respect to each of these elements must be provided to the claimant prior to the initial unfavorable decision by the agency of original jurisdiction (AOJ). In the present case, the Board finds that VA has satisfied its duty to notify. By way of a letter sent to the Veteran in January 2008, the AOJ informed the Veteran that, in evaluating his disability, it would consider evidence of the nature and symptoms of his condition; the severity and duration of his symptoms; and the impact of his condition and symptoms on employment. He was notified of the general manner in which disability ratings are assigned, and examples of the types of evidence he could submit, or ask VA to obtain, were also provided. See, e.g., Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that generic notice in response to a claim for an increased rating is all that is necessary). No corrective action is required. B. The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In the present case, the Board finds that the duty to assist has been fulfilled with respect to the matter that is currently being adjudicated. The Veteran's service treatment records have been obtained, as have records of relevant post-service VA, private, and service department medical care. He has also been examined (to include in May 2008 and September 2011). The report of the September 2011 examination is in substantial compliance with the directives contained in the Board's July 2011 remand, see, e.g., D'Aries v. Peake, 22 Vet. App. 97, 104 (2008), and the reports of the relevant examinations, taken together with other evidence of record, contain descriptions of impairment sufficient for the proper evaluation of his disability. No further development action is required. II. The Merits of the Veteran's Appeal Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). VA regulations define disability of the musculoskeletal system primarily as "the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." 38 C.F.R. § 4.40 (2012). To that end, section 4.40 provides that: 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. With regard to disorders of the joints, applicable regulations provide that "the factors of disability reside in reductions of their normal excursion of movements in different planes." 38 C.F.R. § 4.45 (2012). To that end, the regulations provide that, when rating disabilities of the joints, inquiry will be directed to considerations such as: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Id. The regulations further provide that instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are also to be considered. Id. § 4.45(f). See also 38 C.F.R. § 4.59 (2012) ("The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability"); DeLuca v. Brown, 8 Vet. App. 202 (1995). Myositis is rated on the basis of limitation of motion of affected parts, as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5021. Degenerative arthritis, established by X-ray findings, is generally rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). If the limitation of motion of the involved joint(s) is noncompensable under the appropriate diagnostic code(s), a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For purposes of Diagnostic Code 5003, the ankle is considered a major joint. 38 C.F.R. § 4.45(f) (2012). Disabilities manifested by limitation of motion of the ankle are evaluated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). Ratings of 10 and 20 percent are warranted for moderate and marked limitation of motion of the ankle, respectively. The normal range of motion in the ankle is dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II (2012). Ankle disabilities may also be rated under Diagnostic Codes 5270, 5272, 5273, and 5274 (2012). Under Diagnostic Code 5270, ratings of up to 40 percent are available for ankylosis of the ankle. Under Diagnostic Code 5272, ratings of up to 20 percent are available for ankylosis of the subastragalar or tarsal joint. Under Diagnostic Code 5273, ratings of up to 20 percent are available for malunion of the os calcis or astragalus. Finally, Diagnostic Code 5274 provides a 20 percent for astragalectomy. In the present case, the evidence of record shows that service connection was originally established for fibromyositis of the right ankle and right knee in June 1994, effective from December 1993. The disability was evaluated as 10 percent disabling under Diagnostic Codes 5257-5271. In December 2007, the Veteran filed a claim for increased rating. As noted previously, in August 2012-while the appeal of the Veteran's claim was pending-the AMC recharacterized the service-connected disability of the right ankle to include degenerative joint disease and established a 10 percent rating for that disability, separate and apart from the 10 percent rating assigned for the disability of the right knee, effective from the date of receipt of the Veteran's claim for increase. In May 2008, the Veteran underwent a VA examination in connection with his claim for increased rating. He reported that his right ankle hurt when he engaged in excessive walking or tried to run. He otherwise denied pain, weakness, stiffness, swelling, heat, redness, instability, giving way, locking, fatigability, lack of endurance, episodes of dislocation or recurrent subluxation, and flare-ups. It was noted that he did not require any assistive devices for ambulation, and that problems with his ankle did not adversely affect his daily activities or usual occupation. On examination, the Veteran's right ankle was noted to exhibit normal function, without pain or ankylosis. He had dorsiflexion from 0 to 20 degrees; plantar flexion from 0 to 45 degrees; inversion from 0 to 30 degrees; and eversion from 0 to 20 degrees. It was noted that there was no change in the range of motion after repetition; that his gait was normal; that there was no objective evidence of fatigue, weakness, lack of endurance, incoordination, or instability; and no functional limitations due to pain, fatigue, lack of endurance, or incoordination. The examiner also indicated that there were no functional limitations on standing or walking, no effusion, redness, heat, or guarding, and no indication of abnormal weight bearing. X-rays of the right ankle were interpreted to reveal mild osteoarthritis and a small posterior calcaneal spur. During VA mental health treatment in November 2008, the Veteran reported that walking one-half mile resulted in right knee pain. In December 2008, he indicated that he wanted to try a cane to see if it would improve his knee pain; and a cane was issued. In October 2009, the Veteran was seen by a podiatrist for complaints relative to his feet. No complaints relative to the right ankle were noted. In July 2010, the Veteran was examined in connection with a claim for increased rating for plantar fasciitis. No complaints or findings relative to the right ankle were recorded. During a Board hearing conducted in March 2011, the Veteran offered no testimony relative to any functional impairment of his right ankle. On VA examination in September 2011, the Veteran reported that he had had more pain in the right ankle for the last several months. He denied symptoms of stiffness, weakness, deformity, instability, incoordination, episodes of dislocation or subluxation, locking, effusions, giving way, decreased speed of joint motion, and flare-ups. He also reported significant symptoms associated with his right knee. He indicated that he was able to stand for 15 to 30 minutes; that he was able to walk more than 1/4 mile, but less than a mile, and that he always used a cane. On examination, the Veteran's gait was antalgic, and his right ankle was tender. There was no evidence of abnormal weight bearing, ankle instability, or tendon abnormality; no evidence of loss of a bone or part of a bone; and angulation was noted to be normal. The Veteran had dorsiflexion in the right ankle from 0 to 15 degrees, with pain beginning at 15 degrees, and right plantar flexion from 0 to 45 degrees, with pain beginning at 45 degrees. The examiner indicated that there was objective evidence of pain following repetitive motion; however, there were no additional limitations after three repetitions. X-rays were interpreted to reveal mild osteoarthritis and a small posterior calcaneal spur. The diagnostic assessment was that the Veteran had degenerative joint disease of the right ankle. The examiner indicated that the Veteran's disability had significant effects on his usual occupation, in terms of pain and decreased mobility. The examiner also indicated that the disability had mild effects on daily activities such as shopping, exercise, recreation, sports, traveling, and performing chores; and no effect on activities such as feeding, bathing, dressing, driving, grooming, and toileting. Following review of the evidence in this case, and the applicable law and regulations, the Board finds that the preponderance of the evidence is against the assignment of an increased schedular evaluation for the Veteran's service-connected right ankle disability. The evidence contemporaneous with the current claim, including the reports of VA compensation examinations conducted in May 2008 and September 2011, shows that, while the ankle has been described as objectively tender (in September 2011), the Veteran has consistently demonstrated painless, active dorsiflexion in the ankle to at least 15 degrees, and plantar flexion to a full 45 degrees. With the exception of pain on excessive walking or running, the Veteran has expressly denied having symptoms of weakness, stiffness, deformity, swelling, heat, redness, instability, incoordination, giving way, locking, fatigability, lack of endurance, episodes of dislocation or recurrent subluxation, decreased speed of joint motion, and flare-ups. Nor is there any objective evidence of such symptoms. In addition, both VA examiners who evaluated the Veteran's ankle noted no change in function on repetitive movement. Under the circumstances, and considering the totality of the evidence, the Board finds that the overall limitation of motion in the Veteran's right ankle cannot be properly characterized as "marked," so as to warrant the assignment of a higher, 20 percent, evaluation under Diagnostic Code 5271. The Board notes, moreover, that Veteran's right ankle is not shown to be ankylosed. Nor is his subastragalar or tarsal joint. In addition, there is no evidence of any malunion of the os calcis or astragalus, or of astragalectomy. As a result, there is no basis for the assignment of a separate or higher evaluation for his disability under Diagnostic Codes 5270, 5272, 5273, and/or 5274. In the final analysis, the Board finds no sound evidentiary basis for the assignment of a higher evaluation under the diagnostic code that forms the basis of the Veteran's current evaluation (Diagnostic Code 5271), or any others that are potentially applicable. In evaluating the Veteran's claim, the Board has specifically considered whether he is entitled to a "staged rating." See Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the Board's conclusion, however, that the Veteran's right ankle disability has never been more than 10 percent disabling since the time that the underlying claim for increase was filed. A "staged rating" is not warranted. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer a case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321(b)(1) (2012). The criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Board has considered whether the Veteran's claim should be referred for consideration of an extraschedular evaluation, and has concluded that no such referral is warranted. The Veteran's right ankle symptomatology is fully contemplated by the relevant diagnostic criteria, together with the related provisions of 38 C.F.R. § 4.40, 4.45, and 4.59. There is nothing in the record to suggest that his disability picture is so exceptional or unusual as to render impractical the application of the regular schedular standards. See, e.g., Thun v. Peake, 22 Vet. App. 111 (2008). ORDER A rating in excess of 10 percent for fibromyositis and degenerative joint disease of the right ankle is denied. REMAND Documents added to the record subsequent to the Board's July 2011 remand show that the Veteran underwent arthroscopic surgery of the right knee in February 2010, under the care of a Dr. Nadler, at a hospital in Ocala, Florida, that may have involved removal of meniscus. Records of the care leading up to, including, and subsequent to that surgery could contain information relevant to the evaluation of the Veteran's service-connected right knee disability, to include his entitlement to a staged rating. See, e.g., 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 (indicating that a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, and a 10 percent rating is warranted for symptomatic removal of semilunar cartilage). As such, efforts should be made to procure them. See 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records). A remand is required. 38 C.F.R. § 19.9 (2012). For the reasons stated, this case is REMANDED for the following actions: 1. Ask the Veteran to provide a release for all relevant records of care leading up to, including, and subsequent to the arthroscopic surgery he had on his right knee in February 2010, under the care of a Dr. Nadler, at a hospital in Ocala, Florida. Also ask the Veteran to identify any other additional evidence pertinent to the issue remaining on appeal, to include any VA treatment he may have received for his right knee disability since July 2011, and any treatment he may have received for his right knee disability at MacDill Air Force base since August 2011. If he adequately identifies the records, and provides release(s) (where necessary), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. If any of the records identified are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. After conducting any additional development deemed necessary (to include additional examination of the right knee, if evidence received reflects that there has been a material change in the Veteran's disability), the record on appeal should again be reviewed. If the issue remaining on appeal is denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The remanded matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs