Citation Nr: 1323365 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-38 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for the post-operative residuals of a fracture of the left medial malleolus and distal one third of the fibula, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for a post-operative surgical scar of the left medial malleolus and fibula, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from December 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision that denied entitlement for increased evaluations for the Veteran's left ankle disability and scar of the left ankle. The Veteran also appealed a denial of service connection for a heart disability in the February 2009 rating decision. However, entitlement to service connection for ischemic heart disease was granted in a March 2011 rating decision. As this represents a complete grant of the benefit sought on appeal, the claim for service connection for a heart disability is not before the Board. The Veteran appeared at a hearing before a hearing officer at the RO in May 2010. A transcript of this hearing is in the claims folder. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any relevant evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The post-operative residuals of a fracture of the left medial malleolus and distal one third of the fibula result in moderate ankle disability and malformation. 2. The Veteran has a superficial scar that has no tenderness, adherence to underlying tissue, frequent loss of the skin covering the scar due to ulcerations or breakdowns, or elevation or depression of the surface of the scar, and does not result in any limitation of motion or function of the affected part. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent for the post-operative residuals of a fracture of the left medial malleolus and distal one third of the fibula have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5262, 5263, 5270, 5271, 5272, 5273, 5274 (2012). 2. The criteria for an evaluation in excess of 10 percent for a post-operative surgical scar of the left medial malleolus and fibula have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21 (2012); 38 C.F.R. § 4.118, Codes 7801, 7802, 7803, 7804, 7805 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Veteran was provided with a letter in July 2008 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Vazquez-Flores, Dingess, Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained, and the Veteran has indicated that all his recent treatment has been received from VA. The Veteran has offered testimony at a hearing before a hearing officer at the RO, and a transcript of this hearing is in the record. He was afforded appropriate VA examinations, and relevant information has been obtained after a review of the claims folder. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeals. Increased Ratings The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Left Ankle Disability The RO granted entitlement to service connection for the post-operative residuals of a fracture of the left medial malleolus and distal one third of the fibula granted in a June 1973 rating decision. A 50 percent evaluation was assigned from June 1972, followed by a 10 percent evaluation from July 1973. The evaluation was decreased to noncompensable in a March 1985 rating decision, effective from June 1985. However, a 10 percent rating was again assigned in a June 2001 rating decision, effective from February 2001. This 10 percent evaluation remains in effect. The Veteran's left ankle disability has been evaluated under the rating codes for degenerative arthritis and impairment of the tibia and fibula. The rating code for impairment of the tibia and fibula states that nonunion of the tibia and fibula with loose motion, requiring a brace is evaluated as 40 percent disabling. Malunion with marked knee or ankle disability is evaluated as 30 percent disabling. Malunion with moderate knee or ankle disability is evaluated as 20 percent disabling. Malunion with slight knee or ankle disability is evaluated as 10 percent disabling. 38 C.F.R. § 4.71a, Code 5262. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application 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. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. A 10 percent rating is provided for moderate limitation of ankle motion and a maximum 20 percent rating for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). These provisions are not for consideration; however, where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The relevant evidence includes the report of a November 2008 VA fee basis examination of the Veteran's left ankle. He was noted to have a history of a fracture of the left ankle. The Veteran had undergone surgery to repair the fracture in 1971 and to remove a loose pin in 1976. There was no history of osteomyelitis. The Veteran's current symptoms included pain, weakness, stiffness, and giving way. There was no swelling, heat, redness, drainage, instability, locking, or abnormal motion. The Veteran reported left leg weakness and stiffening. He further reported painful motion and said that when he walked for too long his ankle would give way. He reported severe flare-ups several times per month due to cold weather. The flare-ups would last from hours to days. The Veteran treated his symptoms with over the counter medication. On examination, the Veteran was noted to be right side dominant. He reported pain with walking, an inability to appropriately dorsiflex the foot, problems with going up stairs, and popping and giving way. He walked with a limp that favored the left leg, but there was no evidence of abnormal weight bearing. There was no ankylosis. On initial range of motion testing, the Veteran had 20 degrees of dorsiflexion and 45 degrees of plantar flexion, both of which the examiner indicated were normal. Pain did not begin until 20 degrees of dorsiflexion or 45 degrees of plantar flexion. There was no varus/valgus of os calcis in relationship to the long axis of the tibia and fibula. On repetitive testing, the Veteran had pain, fatigue, and weakness, but no lack of endurance or incoordination. There was no decrease in the range of motion on repetitive testing. The left leg was one centimeter shorter than the right leg. Finally, there was no malunion of the os calcis or astralgus. The relevant diagnosis was status post open reduction and internal fixation of the left tibia/fibula to medial malleolus. An X-ray study of the left ankle was abnormal with a finding of an old well healed fracture of the distal fibular shaft with the ankle mortise intact. The examiner's summary of the Veteran's residuals included pain, loss of flexion of the foot, and marked limitation of the ability to walk and go upstairs. At the May 2010 hearing, the Veteran testified that he experiences left ankle pain two or three times a month. It was worse in the winter when he had pain once or twice a week. He was on pain medication for another illness, but it helped mask the left ankle pain. The Veteran said he had problems moving his foot from side to side. He added that he would limp if he did not wear boots that supported his ankle. The Veteran believed that his ankle disability had become worse since his November 2008 examination. See Transcript. The Veteran's was afforded a new VA examination in June 2010. The claims folder was reviewed by the examiner. The Veteran reported pain of the left ankle, as well as swelling and tenderness. There was no deformity, giving way, instability, stiffness, weakness, incoordination, effusion, or episodes of dislocation or subluxation. He experienced flare-ups of moderate severity on a weekly basis. These flare-ups were precipitated by being on his feet, and would last for hours. The Veteran said that left ankle pain significantly limited his daily activities. There were no constitutional or incapacitating episodes of arthritis. The Veteran could stand about an hour and walk for a quarter of a mile. On examination, there was no evidence of abnormal gait or weight bearing. The Veteran had pain at rest in his left ankle, as well as pain on inversion. There was no ankle instability. Dorsiflexion was from zero to 15 degrees, and plantar flexion was from zero to 30 degrees. There was no objective evidence of pain on motion. However, repetitive motion resulted in additional limitation of motion due to pain. Repetitive motion reduced the range of motion to from zero to 10 degrees of dorsiflexion, while plantar flexion remained zero to 30 degrees. There was no joint ankylosis. An X-ray study revealed the old fracture of the distal left fibula. The Veteran was retired due to heart problems. The diagnoses included left ankle and fibular fracture. This resulted in decreased mobility, lack of stamina, decreased strength, and pain. His ankle disability made it difficult to drive the standard transmission of a truck. There was a moderate effect on his ability to exercise, but mild to no effects on his other daily activities. Analysis Initially, the Board notes that the rating criteria for impairment of the tibia and fibula address both knee and ankle disability. See 38 C.F.R. § 4.71a, Code 5262. However, the record clearly shows that the Veteran's injury involved the ankle as well as the distal end of the fibula. There is no evidence that the left knee was involved. Moreover, the most recent examination showed full range of motion of the knee. The Board will therefore concentrate on impairment of the ankle. The evidence supports a finding of moderate ankle disability with malunion as required for a 20 percent evaluation. The November 2008 examination shows the Veteran had a full range of motion of the left ankle, except for pain at the end points, which was not reduced on repetitive use. However, there was also pain, fatigue, and weakness and he had flare-ups several times a month. The November 2008 examiner opined that the Veteran's residuals included pain, loss of flexion of the foot, and marked limitation on the ability to walk and go upstairs. By June 2010, the range of motion was reduced, as shown by the 30 degrees of plantar flexion and 10 degrees of dorsiflexion after repetitive use. This is a significant reduction from the normal range of motion, which are 45 degrees of plantar flexion and 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II (2012). Given the November 2008 examiner's opinion that there was marked limitation in walking and using the stairs, the June 2010 finding of approximately half the range of motion, the slight leg shortening, and abnormal X-ray findings, the Board concludes that the Veteran has the moderate ankle disability with malunion, as required for a 20 percent evaluation. 38 C.F.R. § 4.71a, Code 5262. The although the November 2008 examiner refers to "marked" limitation on walking and using stairs, and the June 2010 examiner noted significant limitations on driving with a standard transmission; he has no more than moderate, and mostly mild, impairment in all other activities. The Veteran had little to no additional impairment following repetitive use and no objective evidence of abnormal weight bearing. In short while the Veteran was noted to have marked limitation in one area of functioning, in all remaining areas he has been found to have much milder impairment. The Board finds that this symptomatology does not equate to the marked ankle disability required for an evaluation in excess of 20 percent. 38 C.F.R. § 4.71a, Code 5262. The Board has also considered entitlement to an evaluation in excess of 20 percent under other rating criteria, but this is not supported by the evidence. The examinations have shown that he has significant remaining motion and were negative for ankylosis of the left ankle, which precludes evaluation under 38 C.F.R. § 4.71a, Code 5270. The 20 percent rating is the highest available for limitation of motion of the left ankle; and a separate rating would not be warranted, because the limitation of motion is considered in the rating under Diagnostic Code 5262. 38 C.F.R. § 4.71a, Code 5271. A separate rating would constitute prohibited pyramiding under 38 C.F.R. § 4.14 (2012). The rating codes for genu recurvatum, os calcis or atragalus, or astragalectomy, even if applicable, also fail to provide for an evaluation greater than 20 percent, and again a separate rating under those codes would not be warranted, because all of the Veteran's symptomatology has been considered under Diagnostic Code 5262. Diagnostic Code 5275, provides ratings for leg shortening, but does not provide a compensable rating unless the shortening approximates 3.2 cms. The Veteran reportedly has only a 1 cm. shortening. Therefore, there is no basis for an evaluation in excess of 20 percent under any rating code that is potentially applicable to the Veteran's left ankle disability. 38 C.F.R. § 4.71a, Code 5263, 5272, 5273, 5274. Entitlement to consideration for an extraschedular evaluation will be considered below. Scar of the Left Medial Malleolus and Fibula The record shows that entitlement to service connection for a postoperative surgical scar of the left medial malleolus and fibula was established in a June 2001 rating decision. A 10 percent evaluation was assigned, effective in February 2001, and remains in effect. The relevant evidence shows that the November 2008 VA fee basis examination included the Veteran's scar. He was noted to have a scar from the surgical correction of his ankle injury. The scar was located at the left anterior to the medial malleolus of the ankle. It was 10 centimeters long by a quarter centimeter wide. The texture of the skin was normal. There was no tenderness, adherence to underlying tissue, frequent loss of the skin covering the scar due to ulcerations or breakdowns, or elevation or depression of the surface of the scar. The scar was superficial without any underlying soft tissue damage. It was not deep, and there was no induration or inflexibility. It had a very slight hypopigmented color. There was no inflammation, edema, or keloid formation. The examiner stated that the scar did not cause any limitation of motion or function. The June 2010 VA examiner noted a scar over the left medial malleolus that was about 5 to 6 centimeters long. No other findings were recorded. The Veteran's scar is evaluated under the rating code for scars that are superficial or painful on examination. 38 C.F.R. § 4.118, Code 7804. The criteria for rating scars were amended effective October 23, 2008. The October 2008 revisions apply to claims for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708 (September 23, 2008). The Veteran can also request to be reviewed under the new criteria. See 38 C.F.R. § 4.118. In this case, the Veteran filed his claim in June 2008. He has not requested to be reviewed under the new rating criteria. Therefore, only the pre- October 2008 version of the schedular criteria, set out immediately below, is applicable. Under this rating criteria, scars that are superficial, painful on examination are evaluated as 10 percent disabling. 38 C.F.R. § 4.118, Code 7804 (2008). Note (1) defines a superficial scar as one not associated with underlying soft tissue damage. As the Veteran is already in receipt of the highest evaluation under this rating code, the Board will determine if there are other rating criteria that should be considered in the evaluation of the Veteran's disability. The rating code for scars that are superficial and unstable also allows for a maximum evaluation of 10 percent, and is of no benefit to the Veteran. 38 C.F.R. § 4.118, Code 7803 (2008). The rating code for scars of other than the head, face, or neck and that are deep or cause limited motion provides for up to a 40 percent evaluation. However, this rating code is not applicable, as the November 2008 VA examiner notes that the scar is not deep and does not cause limitation of motion. 38 C.F.R. § 4.118, Code 7801 (2008). The rating code for scars of other than the head, face, or neck that are superficial and that do not cause limited motion again provides for a maximum 10 percent evaluation. Finally, 38 C.F.R. § 4.118, Code 7805 (2008) states that other scars are to be rated on limitation of function of the affected part, but the November 2008 VA examiner found that the scar did not cause any limitation of function. Furthermore, the Veteran's left ankle disability, which is the affected part, is already evaluated based on limitation of motion and function, and to evaluate the scar on the same basis is prohibited. 38 C.F.R. § 4.14. The remaining rating criteria for scars are for the head or face, or are concerned with specific diseases. 38 C.F.R. § 4.118, Codes 7800, 7806-7833 (2008). The Board concludes that the applicable rating criteria do not provide for an evaluation of more than the 10 percent that is currently assigned. Even if the Veteran would have requested review under the new criteria that went into effect in October 2008, his claim would still fail. At least three service connected scars are required for consideration of an evaluation greater than 10 percent under the current rating code for unstable or painful scars, and the Veteran is service connected for only the one surgical scar. See 38 C.F.R. § 4.118, Code 7804 (2012). 38 C.F.R. § 4.118, Code 7800 (2012) is concerned with scars of the head, face, or neck; and 38 C.F.R. § 4.118, Code 7801 (2012) requires evidence of a deep scar, which the November 2008 examiner found does not exist. 38 C.F.R. § 4.118, Code 7802 (2012) provides for no more than a 10 percent evaluation. The rating code for other scars states that any disabling effects not considered in rating under codes 7800-04 is to be evaluated under an appropriate rating code. 38 C.F.R. § 4.118, Code 7805 (2012). However, as already noted, the November 2008 examiner found that the scar did not cause any limitation of function, and the Veteran is already in receipt of compensation based on limitation of his left ankle. Therefore, it would have been of no benefit to the Veteran to have been evaluated under the new rating criteria. Other Considerations The Veteran is in receipt of a total rating based on individual unemployability due to service connected disabilities (TDIU). Therefore, further consideration of this matter under Rice v. Shinseki, 22 Vet. App. 447 (2009) is not warranted. Consideration has also been given regarding whether the schedular evaluations for the Veteran's left ankle and scar are inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or to the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. The scheduler criteria adequately describe the Veteran's symptoms for his left ankle disability. These symptoms include limitation of motion of the ankle and pain, all of which are provided for in the rating criteria. His scar does not produce any symptoms not included in the rating criteria. Moreover, even if the scheduler criteria were to prove inadequate, there is no record of marked interference with employment due to these service connected disabilities. He has not been hospitalized for either disability since at least 1976. The Veteran is noted to have retired for medical reasons other than his left ankle and scar. Accordingly, referral for consideration of an extra-schedular rating is not warranted. ORDER Entitlement to an increased, 20 percent, rating for the post-operative residuals of a fracture of the left medial malleolus and distal one third of the fibula is granted. Entitlement to an evaluation in excess of 10 percent for a post-operative surgical scar of the left medial malleolus and fibula is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs