Citation Nr: 1324891 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-12 658 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right ankle. 2. Entitlement to service connection for a right thumb disorder. 3. Entitlement to service connection for a bilateral knee disorder, including as secondary to service-connected right and left ankle disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1976, October 1977 to June 1982, and from May 1983 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Virtual VA claims file has been reviewed. The claims for service connection for a right thumb disorder and a bilateral knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Degenerative joint disease of the right ankle is productive of marked limitation of motion of the ankle. CONCLUSION OF LAW The criteria for a rating of 20 percent for degenerative joint disease of the right ankle have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in May 2008, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for an increased rating, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claim. The Veteran was afforded a VA examination responsive to the claim for an increased disability rating. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the increased rating claim on appeal. The examination report contains all the findings needed to rate the Veteran's service-connected right ankle disability, including his history and clinical evaluation. The Board finds that the opinion is adequate. The Veteran's appeal for a higher evaluation for the right ankle is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2008 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his right ankle disability has worsened since the VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that this disability worsened since the most recent VA examination. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded adequate examinations on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Veteran has not alleged that the examination is inadequate to decide the claim being adjudicated herein, so the examination is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Finally, during the March 2013 hearing before the undersigned, the Veterans Law Judge clarified the issue on appeal and explained the existence of additional evidence that may have been overlooked. 38 C.F.R. § 3.102. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Evaluation Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. More generally, disability of the musculoskeletal system is primarily 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Court has also held that VA's regulations pertaining to whether a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion), 38 C.F.R. §§ 4.40 and 4.59, apply regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Analysis for a Disability Evaluation The Veteran is rated for his degenerative joint disease of the right ankle pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271; he receives a 10 percent disability evaluation for the entire rating period. The Veteran was afforded a VA examination in connection with his claim in June 2008. According to the report, the Veteran denied a history of recurrent sprains and fracture of the right ankle. He complained of daily aching pain, rated as 5 out of 10, and treated with Motrin and Tylenol. He denied needing an assistive device such as a brace or cane, but related that he previously used orthotics. He reported that walking was limited to 2 blocks, and standing was limited to one hour. He denied missing any time at work due to his right ankle, but stated that he was no longer able to participate in sports. Examination showed tenderness over the anterior talofibular ligament area. There was no evidence of effusion, crepitus, or instability. Range of motion is limited; dorsiflexion was to 8 degrees and plantar flexion was to 35 degrees. Repetitive motion testing increased pain, but did not increase limitation of motion. There was also no fatigue, weakness, or lack of endurance following repetitive use. X-rays were normal. The impression was right ankle pain, with decreased range of motion. Private treatment reports from Lacamas Medical Group, dated May 2005 to May 2008, indicate that the Veteran had normal gait and station, and was cleared for exercise testing and programs. He complained of joint pains. December 2008 and April 2013 letters from Lacamas Medical Group state that the Veteran complained of painful joints, including his ankles. The April 2013 letter described his right ankle pain as equal to his left ankle pain. VA treatment records dated August 2001 through September 2008 show complaints of pain and numbness of the ankles. At the March 2013 hearing before the undersigned VLJ, the Veteran asserted that he should be rated as 20 percent disabling for his degenerative joint disease of the right ankle because it was just as painful and disabling as his service-connected degenerative joint disease of the left ankle, which is rated as 20 percent disabling. Pursuant to DC 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle while a 20 percent rating is warranted for marked limitation of motion. Normal range of motion for the ankle is 0 to 20 degrees dorsiflexion and 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. The words moderate and marked are not defined in the regulations. Regardless of the precise basis of the RO's 10 percent rating, the Board has a duty to acknowledge and consider all regulations that are potentially applicable. See Schafrath, supra. The dispositive question on this appeal is therefore whether the symptoms of the Veteran's degenerative joint disease of the right ankle more nearly approximates moderate or marked limitation of motion. For the following reasons, the Board finds that the symptoms more nearly approximate marked limitation of motion. The above evidence reflects that there has been significant limitation of motion of the right ankle. There was limitation of dorsiflexion to 8 degrees and limitation of plantar flexion to 35 degrees on the December 2008 VA examination. There was also increased pain of joint motion upon examination, following repetitive use. The Veteran also offered competent, credible statements indicating limitation of range of motion of the right ankle in performing daily activities. Given this evidence of limitation of motion of the right ankle that limits function by more than one third, the Board finds that his symptoms more nearly approximate marked limitation of motion warranting a 20 percent rating throughout the appeal period. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). This is the highest schedular rating under DC 5271 and the evidence reflects that there were none of the symptoms warranting a higher or separate rating under any potentially applicable diagnostic code as discussed above There is no objective clinical indication that he has additional functional impairment, above and beyond the 20-percent level for the right ankle, which would support an even higher rating. In this regard, the Board points out that the Veteran's VA examination reports were repeatedly negative for objective evidence of incoordination, weakness, abnormal movement, or excess fatigability. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. There was also no evidence of instability or locking, although the Veteran reports experiencing pain and stiffness. Likewise, there was no objective evidence of decreased motor strength. His pain did not significantly inhibit his range of motion or otherwise create functional limitations. Rather, when tested his remaining functional use was no worse than 35 degrees of plantar flexion and 8 degrees dorsiflexion. There also is no objective clinical indication that he has other symptoms (e.g., excess fatigability, weakness, incoordination) which otherwise result in any additional functional limitation in his right ankle to a degree or extent that would support a higher rating. In particular, the December 2008 VA examiner found that there was no additional weakness, fatigability, incoordination, lack of endurance, or additional loss of motion. As a result, his current 20 percent rating for degenerative joint disease of the right ankle adequately compensates him for the extent of his pain, including insofar as its resulting effect on his range of motion. The Board also considered whether the Veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes for the entire rating period. With regard to the criteria under Diagnostic Code 5270, there is no evidence of ankylosis of the Veteran's right ankle. The above evidence reflects that, at no time during the appeal period, have the Veteran's symptoms more nearly approximated ankylosis of the right ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees, or in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees with abduction, adduction, inversion, or eversion deformity warranting a 30 or 40 percent rating under Diagnostic Code 5270, the only diagnostic code applicable to the ankle with criteria for higher schedular ratings. The other diagnostic codes applicable to the ankle, 5272 through 5274, applicable to ankylosis of subastralgar or tarsal joint, malunion of os calcis, and astragalectomy, also provide for maximum 20 percent ratings. Moreover, the Rating Schedule generally prohibits pyramiding, i.e., evaluating the same disability under different diagnostic codes, 38 C.F.R. § 4.14, and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise," Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). As such, the Board does not find that the medical evidence supports a higher schedular rating. One function of the Board is to consider the lay evidence and pleadings. However, other than that recorded during medical evaluations, the record is remarkably lacking in substantive pleadings from the Veteran or the representative. The Board is fully aware that the appellant is competent to report his symptoms, and that he testified as pain and instability of the right ankle at the March 2013 hearing before the RO. Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence. Extraschedular Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's degenerative joint disease of the right ankle is fully contemplated by the applicable rating criteria. As shown above, the criteria include symptoms of stiffness, limitation of motion, and pain, each of which were addressed in the VA examination and treatment records and which provided the basis for the disability rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. None of the VA examiners indicated that the Veteran lost any time from work due to his right ankle disability. Therefore, referral for consideration of an extraschedular rating for the Veteran's degenerative joint disease of the right ankle is not warranted. 38 C.F.R. § 3.321(b)(1). In the absence of exceptional factors associated with degenerative joint disease of the right ankle, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating of 20 percent for degenerative joint disease of the right ankle is granted, subject to controlling regulations governing the payment of monetary awards. REMAND Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay statements can satisfy each of these elements in certain circumstances, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon, 20 Vet. App. at 83. The Veteran has not been provided with a VA examination in order to address whether his claimed bilateral knee disorder is related to his active service, including his service-connected right and left ankle disabilities. The Board acknowledges that the Veteran's service treatment records show the Veteran was treated for complaints of right knee pain and swelling in July 1999. His August 1999 separation examination showed pain on movement of the right knee; the Veteran reported that he was awaiting surgery. VA treatment records dated August 2001 through September 2008 show treatment for bilateral knee pain. A May 2008 treatment record indicates that the Veteran reported that he was diagnosed with arthritis; the assessment was patellar femoral compartment syndrome. December 2008 and April 2013 letters from Lacamas Medical Group suggest that the Veteran's degenerative joint disease might have been caused by his military service, including his service-connected ankle disabilities. As such, the Board finds that a VA examination is warranted to determine whether the Veteran has current right and left knee disabilities and, if so, whether such disabilities are related to his service, including his service-connected right and left ankle disabilities. Additionally, the Board finds that it is unclear from the available medical evidence whether there are any residuals of the Veteran's in-service treatment for a snake bite. Service treatment records confirm a history of a snake bite in 1979. According to such treatment records, he was absent from duty for 7 days due to hospitalization for the snake bite; the hospitalization records are not in the Veteran's claims file. The Veteran's history of a snake bite was noted at the August 1999 separation examination, as well as periodic examinations during his service, but no findings from an evaluation of the area were noted; no residuals were noted, either. The December 2008 and April 2013 letters from Lacamas Medical Group, as well as the Veteran's May 2013 testimony before the undersigned VLJ, indicate that the Veteran experiences decreased grip strength, pain, and numbness of the right thumb. The Veteran also testified that he has a scar on his thumbnail from the snake bite. The letters from Lacamas Medical Group associate the Veteran's right thumb symptoms with the 1979 snake bite. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination as to the nature and etiology of any right and left knee disorder, to include degenerative joint disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should first clearly identify all right and left knee disabilities. With respect to each diagnosed disability, the examiner should indicate whether it is as least as likely as not (50 percent probability or more) that such right and/or left knee disability is caused or aggravated by the service-connected right and left ankle disabilities or is related to service. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 2. Schedule the Veteran for a VA examination as to the nature and etiology of any right thumb disorder, to include residuals of a snake bit (including a scar). Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The provider is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions. A complete rationale should accompany each opinion provided. 3. Readjudicate the claims for service connection. If, upon completion of the above action, the benefits sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs