Citation Nr: 1306450 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-37 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur. 2. Entitlement to an evaluation in excess of 10 percent for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1971 to September 1974, and August 1989 to November 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied increased evaluations for left foot and right foot stress fractures. The Veteran requested a Board hearing, to be held at the RO, on his September 2010 VA From 9, Appeal. He then withdrew that request, and instead informed the RO that he desired a local hearing before a Decision Review Officer. Such was scheduled for June 2011, but the Veteran then cancelled the hearing. He did not request rescheduling, and his hearing request is considered withdrawn. Although the Veteran has repeatedly referred to impairment of his knees in connection with the current appeal, he is not in fact service connected for any disability of either knee. Claims for such have, in fact, been previously denied. However, the Veteran informed the RO in September 2009 that he did not wish to file a reopened claim for either a left or a right knee disability at that time. There is no allegation or evidence of unemployment, and so inference of a claim for a finding of total disability based on individual unemployability is not appropriate as part of his appeal for higher evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. Since February 8, 2012, but no earlier, the Veteran's left calcaneal and tibial stress fracture with traumatic arthritis and heel spur more nearly approximates the criteria for marked limitation of motion of the ankle. 2. Since February 8, 2012, but no earlier, the Veteran's right calcaneal and tibial stress fracture with traumatic arthritis and heel spur more nearly approximates the criteria for marked limitation of motion of the ankle. CONCLUSIONS OF LAW 1. From February 8, 2012, the criteria for a 20 percent rating, but no higher, for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5010-5262, 5271 (2012). 2. From February 8, 2012, the criteria for a 20 percent rating, but no higher, for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Codes 5010-5262, 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. An August 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an October 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional treatment records pertinent to the appeal that are not of record. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2009 and February 2012; the Veteran has not argued, and the record does not reflect, that the February 2012 examination was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The February 2012 VA examiner reviewed the claims file and the opinion is based on objective findings and reliable principles. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Evaluation Applicable Laws & Regulations Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. Application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis; and when raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability. Burton v. Shinseki, 25 Vet. App. 1 (2012). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Diagnostic Code 5010, used for rating traumatic arthritis, directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2012). When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The above ratings are not to be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1 (2012). Under Diagnostic Code 5262, impairment of the tibia and fibula manifested by nonunion, with loose motion and requiring a brace, warrants a 40 percent evaluation. Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent evaluation. Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent evaluation. Malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5271, pertaining to limitation of motion of an ankle, a maximum 20 percent evaluation is warranted for a marked limitation of ankle motion. A 10 percent evaluation is warranted for a moderate limitation of ankle motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2012). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran seeks higher evaluations for his service-connected right calcaneal and tibial stress fracture with traumatic arthritis and heel spur, and for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur. Separate 10 percent evaluations have been assigned for the right and left calcaneal and tibial stress fractures with traumatic arthritis and heel spurs under hyphenated Diagnostic Codes 5010-5262. 38 C.F.R. §4.71a , Diagnostic Codes 5010-5262 (2012). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Diagnostic Code 5262 pertains to impairment of the tibia and fibula. Diagnostic Code 5010 pertains to arthritis. The February 2012 VA examiner reported that right ankle plantar flexion ended at 15 degrees, and that left ankle plantar flexion ended at 15 degrees. Normal ranges of ankle motions are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. See 38 C.F.R. § 4.71, Plate II. Additional functional impairment with repetitive motion of each ankle was noted to be due to excess fatigability, pain, swelling, disturbance of locomotion, and interference with sitting, standing, and weight bearing. The Board finds that, from February 8, 2012, the disability picture for both the left and right calcaneal and tibial stress fractures with traumatic arthritis and heel spurs more nearly approximates the criteria for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Therefore, a 20 percent rating, but no higher, is warranted for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur, and a 20 percent evaluation, but no higher, is warranted for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur, from February 8, 2012, the date of the VA examination, and no earlier. The 20 percent evaluation granted in this decision is maximum evaluation under both Diagnostic Code 5010 and 5271. A rating higher than 20 percent for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur and higher than 20 percent for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur is not warranted at any time during the appeal period, prior to February 8, 2012. The August 2009 VA examination report reflects normal range of motion in both the right and left ankle without pain or limitation of motion with repetitive motion due to any factor in either ankle. Although tenderness in the right and left foot was noted, his gait was normal and no signs of abnormal weight bearing were noted. No skin or vascular changes were reported. X-ray examination was noted to show only mild arthritis in multiple joints in each foot. The February 2012 VA examiner reported that the Veteran has no other foot condition except for the service-connected stress fractures. The examiner specifically noted no Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus, claw foot/pes cavus, or malunion/nonunion of tarsal/metatarsal bone noted. Thus, a higher rating is not warranted under any other relevant diagnostic code. The Veteran is competent to report his symptoms, to include pain, weakness, stiffness, swelling, giving way, locking and abnormal motion, and inability walk very far and pain with prolonged standing. Prior to February 8, 2012, however, the objective evidence does not support a rating higher than 10 percent for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur or higher than 10 percent for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur. The recommendation for use of a cane was made in association with left knee osteoarthritis in January 2010. The degree of impairment due to nonservice-connected disability is not for consideration in the evaluation of the Veteran's right and left calcaneal and tibial stress fractures with traumatic arthritis and heel spurs. A March 2010 VA treatment record notes that the Veteran ambulated without assistance. To the extent that interference with employment has been asserted, the 10 percent evaluations assigned for the right foot stress fracture and the left foot stress fracture, prior to February 8, 2012, and the 20 percent evaluations assigned, since February 8, 2012, contemplate impairment in earning capacity, including loss of time from exacerbations of the right and left calcaneal and tibial stress fracture with traumatic arthritis and heel spur. 38 C.F.R. § 4.1. In reaching a determination, the Board has accorded significant probative value to the February 2012 VA opinion with respect to the findings as to having met the criteria for 20 percent evaluations, since February 8, 2012, and the finding that the criteria for higher ratings are not warranted, prior to February 8, 2012. The examiner reviewed the claims file and reported objective findings based on medical expertise. Such is far more probative than the Veteran's lay statements. In sum, the evidence is in favor of 20 percent rating for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur, and in favor of a 20 percent rating for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur, since February 8, 2012. The preponderance of the evidence is against a rating higher than 10 percent for left calcaneal and tibial stress fracture with traumatic arthritis and heel spur and against a rating higher than 10 percent for right calcaneal and tibial stress fracture with traumatic arthritis and heel spur, prior to February 8, 2012, and there is no doubt to be resolved. 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). Here, the applicable rating criteria adequately contemplate the manifestations of the Veteran's right and left ankle/foot disabilities, which include pain and marked limited motion. Referral for consideration of an extraschedular rating is not warranted. ORDER From February 8, 2012, a 20 percent evaluation is granted for right calcaneal and tibial stress fractures with traumatic arthritis and heel spurs. From February 8, 2012, a 20 percent evaluation is granted for left calcaneal and tibial stress fractures with traumatic arthritis and heel spurs. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs