Citation Nr: 1314926 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-070 01A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 30 percent for the residuals of an injury to the right lower leg, with degenerative joint disease of the right ankle. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from February 1956 to February 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The issue of entitlement to an increased disability rating for Veteran's service-connected degenerative joint disease of the right knee been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over this issue and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's service-connected residuals of an injury to right lower leg more nearly approximates a disability manifested by impairment of the tibia and fibula with nonunion, loose motion, and the need for an ankle brace. 2. There is x-ray evidence of arthritis of the right ankle, with pain on motion. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no more, for residuals of an injury to the right lower leg, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2012). 2. The criteria for a separate 10 percent rating, but no more, for degenerative joint disease of the right ankle, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The Veteran has been provided the requisite notice with respect to his claim for an increased rating for his service-connected right ankle by letters dated January 2006 and August 2007. The January 2006 letter was prior to the initial RO rating decision denying the benefit sought. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The August 2007 letter provided the required additional notice. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in a December 2008 rating decision. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (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, 444 F.3d 1333-34. VA has obtained available private medical records; service treatment records; VA treatment records; a VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded VA examinations in conjunction with his claim for an increased rating in May 2006, February 2008, and February 2013. The examination reports address the criteria necessary to rate the service-connected right ankle disability and are adequate. 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, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Service connection for the residuals of a lower leg injury and fracture of the right ankle has been in effect at a 10 percent disability rating since December 1959. VA hospital records reveal that the hardware used for fixation of the right ankle fracture was removed in July 1976. In December 2005, the Veteran filed the present claim for an increased rating for his service-connected right ankle disability. A January 2006 VA treatment record reveals that the Veteran sought treatment for complaints of right ankle pain which he described as a "dull toothache" type pain with walking. He reported limping to favor his right leg. Physical examination revealed hypersubination of the right foot. The right ankle was stable, but sharp shock sensation and "twinging" of the right anterior tibial nerve were observed. The assessment was neuropathy of the right lower extremity, hypersupination of the foot, with arthritis of the right ankle. At a May 2006 VA examination, the Veteran reported an increase in symptoms of right ankle pain over the past three years, which was aggravated with prolonged standing and walking. He reported difficulty climbing stairs and doing yard work. He also indicated that his right ankle pain symptoms occurred monthly and lasted for several days. The physical examination revealed no crepitus, deformity, erythema, effusion, instability, or tenderness. Range of motion testing of the right ankle revealed flexion to 25 degrees, dorsiflexion to 10 degrees, inversion to 20 degrees, and eversion to 12 degrees. X-ray examination revealed the prior fracture, with irregularity of the inferior aspect of the fibula. The diagnosis was status post fracture right ankle and degenerative joint disease of the right ankle. In a February 2008 VA examination, the Veteran reported daily intermittent right ankle pain, with flare-ups of increased pain up for a few hours up to three times a week. Range of motion testing of the right ankle revealed flexion to 21 degrees, with pain beginning at 20 degrees; dorsiflexion to 20 degrees, with pain beginning at 18 degrees; inversion to 18 degrees, with pain beginning at 16 degrees; and eversion to 13 degrees, with pain beginning at 12 degrees. No additional range of motion was noted on repetitive motion. The right ankle was tender, but there was no evidence of weakness, swelling, or instability. A May 2009 VA x-ray of the right ankle revealed an old fracture deformity of the right fibula. The joint space appeared normal, but there was soft tissue calcification adjacent to the distal tibia. A plantar calcaneal spur was also present. A July 2009 VA podiatry report indicates an assessment of right ankle arthropathy, with dorsal cutaneous nerve impairment. A custom ankle brace was prescribed and fitted in August 2009. A July 2011 magnetic resonance imaging scan of the right ankle revealed the old healed fracture of the right fibula, with degenerative changes. No nerve compression was identified. In an August 2011 VA podiatry consultation, the Veteran reported increased pain with walking, even when using his prescribed ankle brace. On physical evaluation, there was no pain on palpation or on range of motion of the right ankle. X-ray examination revealed joint space irregularity and narrowing of the right ankle. The assessment was right ankle arthropathy, with dorsal cutaneous nerve impingement. The Veteran was advised to continue the use of his prescribed ankle brace and was also given an elastic ankle sleeve to wear in conjunction with the brace. In February 2013, a VA examination provided a diagnosis of right distal fibula fracture. The Veteran reported increasing pain and stiffness of his right ankle. Range of motion of the right ankle revealed flexion to 45 degrees and dorsiflexion to 20 degrees, with painful motion noted at the end range. Repetitive use testing was conducted and did not reveal any additional limitation of function or limitation of motion. Localized pain to palpation of the right ankle was noted. There was no impairment of ankle strength. There was no evidence of ankylosis, nonunion, or malunion. The Veteran's use of a right ankle brace was noted. Imaging studies revealed an old healed right fibula fracture. The examiner indicated that the service-connected right ankle disability did not impact the Veteran's ability to work. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2012). The hyphenated diagnostic code in this case indicates that traumatic arthritis under Diagnostic Code 5010, is the service-connected disorder, and impairment of the tibia and fibula under Diagnostic Code 5262, as a residual condition. The Veteran's service-connected residuals of an injury to the lower leg, with degenerative joint disease of the right ankle, is rated as 30 percent disabling under Diagnostic Codes 5010-5262, which contemplates malunion of the tibia and fibula, with marked ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. A 40 percent disability rating contemplates nonunion of the tibia and fibula, with loose motion requiring a brace. The 40 percent disability rating is the maximum rating which can be assigned under this diagnostic code. Id. The evidence of record reveals that the Veteran complained of persistent right ankle pain, that required the use of a rigid metal right ankle brace and an elastic sleeve to permit him to ambulate. Although there is no evidence of nonunion of the tibia and fibula with loose motion, his continued complaints of ankle pain and required use of the ankle brace more nearly approximate the criteria for a 40 percent rating under Diagnostic Code 5262. 38 C.F.R. § 4.7 (2012). Accordingly, a 40 percent disability rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5262. In this case, the medical evidence shows that the Veteran has arthritis of a joint and the diagnostic code applicable to the residuals of his injury to his right lower leg, with degenerative joint disease of the right ankle, is not based upon limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Accordingly, a separate rating for limitation of motion may be assigned, but only if there is additional disability due to limitation of motion. See VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997). Diagnostic Code 5010 requires that traumatic arthritis be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings, requires that the affected joints be rated under limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned 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. Id. A separate disability rating is warranted for arthritis of the right ankle. The medical evidence of record contains x-ray evidence of degenerative joint disease of the right ankle. The August 2011 VA podiatry report indicated that joint space irregularity and narrowing of the right ankle were shown on x-ray examination. The 2006 and 2008 VA examinations revealed the presence of limitation of motion of the right ankle, along with objective evidence of pain at the ends of the ranges of motion. The 2013 VA examination revealed a normal range of motion of the right ankle, but also indicated pain at the end of motion. Accordingly, as there is x-ray evidence of degenerative joint disease of the right ankle, as well as limited motion of the right ankle, a separate disability rating of 10 percent for arthritis of the right ankle is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5003; VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997). Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2011). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned disability ratings herein inadequate. The Veteran's residuals of an injury to the lower right leg, with degenerative joint disease of the right ankle, is manifested by x-ray evidence of arthritis, pain, and the need to wear an ankle brace. The criteria for the 40 percent rating assigned reasonably describe the disability level and symptomatology that are the result of this disability. The separate 10 percent disability rating for arthritis of the right ankle has also been assigned. Consequently, the Board concludes that the schedular evaluations in this case are adequate and that referral of the issue of entitlement for extraschedular consideration is not required. See 38 C.F.R. § 4.71a, Diagnostic Code 5262; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected residuals of an injury to the right lower leg, with degenerative joint disease of the right ankle, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected lower right leg disorder varied to such an extent that a rating greater or less than the ratings assigned herein would be warranted. see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The Veteran specifically withdrew his claim for a total disability rating based on individual unemployability during the pendency of this appeal and the Board dismissed that issue in January 2012. Accordingly, consideration of a total disability rating based on individual unemployability is not warranted. 38 U.S.C.A. § 7105; Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In reaching these decisions, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against a rating in excess of the ratings assigned herein for the Veteran's service-connected residuals of an injury to the lower right leg, with degenerative joint disease of the right ankle, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating of 40 percent, but no more, is granted for residuals of an injury of a lower right leg injury, subject to the law and regulations governing the payment of monetary awards. A separate 10 percent disability rating, but no more, is granted for degenerative joint disease of the right ankle, subject to the law and regulations governing the payment of monetary awards. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs