Citation Nr: 1323091 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 10-02 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable rating for residuals of a right ankle sprain. 2. Entitlement to an initial compensable disability rating for Peyronie's disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for residuals of a right ankle sprain, and for Peyronie's disease, and assigned noncompensable ratings effective February 22, 2007. FINDINGS OF FACT 1. The Veteran's residuals of a right ankle sprain are characterized by ankle instability and capsulitis with painful motion. 2. The Veteran's Peyronie's disease is characterized by a deformity of the penis at approximately a 20 to 40-45 degree angulation with weakness on the side to which it is bent, and a loss of 10-20 percent of erectile power. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for residuals of a right ankle sprain have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5271 (2012). 2. The criteria for an initial 20 percent rating for Peyronie's disease have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.115b Diagnostic Code (DC) 7599-7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify and assist The Veteran's claims arise from a disagreement with the initial disability ratings that were assigned following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's available service and private treatment records have been obtained. The Veteran has been provided with an adequate VA examination in connection with his present claims in May 2007 to evaluate the nature, extent and severity of these disabilities. Significantly, the Board observes that the Veteran does not report that either condition has worsened since that time beyond the degree to which it was reflected in subsequent private examinations, and thus a remand is not required solely due to the passage of time since the May 2007 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Analysis Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Residuals of a Right Ankle Sprain The Veteran contends in his February 2007 claim that he experiences right ankle crepitus, pain and swelling on a frequent basis. In his January 2010 substantive appeal, the Veteran reported that he cannot run or jump on that ankle without severe pain and discomfort. 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). Recently, the Court clarified that 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Finally, the Board notes that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected ankle disorders. Diagnostic Codes (DCs) 5003 and 5010, for evaluation of degenerative and traumatic arthritic changes, are applicable to the ankle. 38 C.F.R. §§ 4.45(f); 4.71a, DCs 5003, 5010. Diagnostic Code (DC) 5010 applies to traumatic arthritis and provides that such is evaluated under the criteria for 38 C.F.R. § 4.71a, DC 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations. A 10 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups without exacerbations. Limitation of motion of the ankle warrants a 10 percent evaluation if it is moderate, or a 20 percent evaluation if it is marked. 38 C.F.R. § 4.71a, DC 5271. The RO has evaluated the Veteran's residuals of a right ankle sprain as 0 percent disabling under 38 C.F.R. § 4.71a, DC 5271, effective February 22, 2007. In May 2007, a VA examiner noted that the Veteran reported experiencing moderate pain, as well as periodic swelling and stiffness triggered by prolonged standing or jumping. The VA examiner found tenderness just above the lateral malleolus superiorly and posteriorly. The Veteran had normal range of motion throughout, with dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71, Plate II. The VA examiner found that all motions were accompanied by increasing discomfort, and there was increasing stiffness after range of motion testing. The VA examiner diagnosed the Veteran with a right ankle sprain. In May 2009, a private physician, Dr. Montross, found a slight crepitation with range of motion on the right ankle. Dr. Montross diagnosed the Veteran with right ankle instability, capsulitis, and pain. After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that a 10 percent rating is warranted for residuals of a right ankle sprain under 38 C.F.R. § 4.71a, DC 5271. Although the Veteran's range of motion is normal, the May 2007 VA examiner found that such motion was accompanied by increasing discomfort and stiffness. The May 2009 private physician likewise found evidence of right ankle pain. Consequently, a 10 percent rating for the Veteran's painful motion is warranted. See 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). An additional rating for the Veteran's residuals of a right ankle sprain is not warranted under any other diagnostic code. For example, the Veteran has not found to have right ankle arthritis. 38 C.F.R. § 4.71a, DCs 5003, 5010. Likewise, he has not been found to have ankylosis of the ankle or of the subastragalar or tarsal joint. 38 C.F.R. § 4.71a, DCs 5270, 5272. The Veteran has not been found to have os calcis or astragalus. 38 C.F.R. § 4.71a, DC 5273. He has not been found to have had an astragalectomy. 38 C.F.R. § 4.71a, DC 5274. Peyronie's Disease The Veteran contends in his February 2007 claim that he experiences pain and erectile dysfunction. In his January 2010 substantive appeal, the Veteran reported having a penile bend of about 40 to 45 degrees, a weakness on the side of the bend, and loss of erectile power. Under 38 C.F.R. § 4.115b, DC 7522, a 20 percent rating applies where there is both a deformity of the penis and a loss of erectile power. The RO has evaluated the Veteran's Peyronie's disease as 0 percent disabling under 38 C.F.R. § 4.115b, DC 7599-7522, effective February 22, 2007. In May 2007, a VA examiner noted that the Veteran reported experiencing an approximately 20 degree deviation of the penis, apparent when it is in a state of erection, which begins roughly at the junction of the middle and distal thirds thereof. The Veteran stated that he is able to carry out sexual activity, including maintaining an erection, penetration, and ejaculation-with very slight pain. On examination, the Veteran's penis was straight in its flaccid state, and had plaques at the junctions of the proximal and middle thirds, and of the middle and distal thirds. The VA examiner diagnosed the Veteran with Peyronie's disease, with erectile function preserved, with slight pain during activity. The VA examiner commented that the Peyronie's disease may demonstrate progression with some loss of erectile function or such discomfort that function may be impaired. In May 2009, a private physician, Dr. Bickel, examined the Veteran and found that he was able to get 80 to 90 percent of an erection. He had a significant bend in his penis at about a 40 to 45 degree angulation with weakness on the side to which it was bent, which Dr. Bickel found to be consistent with Peyronie's disease. After reviewing all of the clinical evidence and subjective complaints since the effective date of service connection, the Board finds that a 20 percent rating is warranted for a deformity of the penis with loss of erectile power. A penile deformity consisting of 20 degree deviation was noted by the May 2007 VA examiner, and a bend at about a 40 to 45 degree angulation was found by Dr. Bickel in May 2009. With respect to the loss of erectile power, the Veteran reported having erectile dysfunction in his February 2007 claim, and having a loss of erectile power in his January 2010 substantive appeal. The Veteran is competent to report on his loss of erectile power because he has personal knowledge thereof derived from his own senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); 38 C.F.R. § 3.159(a)(2). The Board further finds that the Veteran's report to his treating physician, Dr. Bickel, of his ability to get 80 to 90 percent of an erection-which constitutes a 10 to 20 percent loss of erectile power-is credible because the Veteran had a strong motive to tell the truth in order to receive proper care. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Therefore, a 20 percent rating is warranted for the Veteran's Peyronie's disease based on his deformity of the penis with loss of erectile power. After a thorough review, the Board finds that no other ratings for the Veteran's Peyronie's disease are warranted under any other diagnostic code. Extraschedular and Unemployability In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321; 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 disabilities, which include painful motion of the right ankle, and a deformity of the penis with loss of erectile power. The rating criteria are thus adequate to evaluate the right ankle disability and Peyronie's disease, and referral for consideration of an extraschedular rating is not warranted. The Board finds that the manifestation of the Veteran's symptoms does not qualify as an exceptional or unusual disability picture. Finally, the Court of Appeals for Veterans Claims has held that a total disability rating based on individual unemployability (TDIU) is a part of a claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran is gainfully employed and has not submitted evidence of unemployability; thus, TDIU is not raised by the record. ORDER A 10 percent disability rating for residuals of a right ankle sprain is granted, subject to the applicable criteria governing the payment of monetary benefits. A 20 percent disability rating for Peyronie's disease is granted, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs