Citation Nr: 1326899 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-28 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for the Veteran's service-connected chronic sprain of the calcaneofibular and anterior talofibular ligaments of the right ankle (right ankle disability). 2. Entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected right foot arthritis with Morton's metatarsalgia (right foot disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from September 1973 to September 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2007 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). In July 2010, the Veteran presented testimony at a videoconference hearing chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In November 2010, the Board remanded the above claims for additional development. FINDINGS OF FACT 1. The most probative evidence of record shows that the Veteran's right ankle disability is manifested by pain with limitation of motion, but not ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. 2. The most probative evidence of record shows that the Veteran's right foot disability, which is manifested by her subjective complaints of pain, lost mobility, and difficulty with weight bearing and objective evidence of soft tissue swelling, painful motion, and tenderness, does not have adverse symptomatology that equates to a moderately severe foot injury and neither has it been diagnosed as flat foot, claw foot, or malunion or nonunion of the tarsal or metatarsal bones. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270-5274 (2012). 2. The criteria for an initial rating in excess of 10 percent for a right foot disability have not been met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5010, 5276-5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Here, however, the Veteran is challenging the initial evaluations assigned following the grant of service connection for the disabilities at issue. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court held that in cases where service connection has been granted and initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering VCAA notice no longer required because the purpose that the notice is intended to serve has been fulfilled. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the July 2010 Board hearing, the VLJ noted the elements of the claims that were lacking to substantiate the claims for higher evaluations. The Veteran was assisted at the hearing by her accredited representative and her representative and the VLJ asked questions to draw out the current severity of the appellant's right ankle and right foot disabilities. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claims, and the Veteran through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate the claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as her post-service records from the Gainesville VA Medical Center. See 38 U.S.C.A. § 5103A(b). The Veteran was also provided with VA examinations in December 2007 and December 2010 and the Board finds they are adequate for rating purpose. As to the 2010 examination, it also substantially complied with the Board's remand order. These examination reports reflect a review of the record on appeal, a comprehensive examination of the claimant, which included range of motion studies that took into her account of complaints of pain, and opinions as to the severity of the disabilities that allow the Board to rate them under all relevant Diagnostic Codes. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA, (VA's electronic files). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims files shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claims The Veteran and her representative assert that her right ankle and right foot disabilities are worse than rated and warrant higher evaluations. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. When evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id, at 206. Under 38 C.F.R. § 4.40, 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. Additionally, 38 C.F.R. § 4.45 provides, as regards to the joints, that the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. Likewise, 38 C.F.R. § 4.59 provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. In Burton v. Shinseki, the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). a. The Right Ankle Disability The December 2007 rating decision granted service connection for chronic sprain of the calcaneofibular and anterior talofibular ligaments of the right ankle (right ankle disability) and granted a 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5271, effective from July 9, 2007. Under 38 C.F.R. § 4.71a, Diagnostic Code 5270, ankylosis of either ankle warrants a 20 percent evaluation if the ankle is fixed in plantar flexion at an angle of less than 30 degrees. A 30 percent evaluation requires that the ankle be fixed in plantar flexion at an angle between 30 degrees and 40 degrees, or in dorsiflexion at an angle between zero degrees and 10 degrees. Ankylosis at greater angles, or an abduction, adduction, inversion, or eversion deformity warrants a 40 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, limitation of motion of the ankle is rated as 10 percent disabling if moderate and 20 percent disabling if marked. Normal range of motion of the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II (2012). Under 38 C.F.R. § 4.71a, Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint of either ankle warrants a 10 percent evaluation if the joint is fixed in a good weight-bearing position. A 20 percent evaluation requires that the joint be fixed in a poor weight-bearing position. Under 38 C.F.R. § 4.71a, Diagnostic Code 5273, malunion of the os calcis or astragalus of either ankle warrants a 10 percent evaluation if there is moderate deformity. A 20 percent evaluation requires marked deformity. Under 38 C.F.R. § 4.71a, Diagnostic Code 5274, an astragalectomy involving either ankle warrants a 20 percent evaluation. As to a higher rating under Diagnostic Code 5271 based on limitation of motion of the ankle, the Board finds that because the Veteran is already receiving the maximum rating possible under this rating criteria, further analysis under this code is not warranted. As to rating the Veteran's right ankle disability under Diagnostic Code 5270 and/or 5272 due to ankylosis, the Board notes that the record, including the findings at the December 2007 and December 2010 VA examinations are negative for a diagnosis of ankylosis. In fact, the December 2007 and December 2010 VA examiners specifically opined that it was not ankylosed and these opinions are not contradicted by any other medical evidence of record. (Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992)). Consequently, a higher evaluation is not warranted for the Veteran's service-connected right ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5270 or Diagnostic Code 5272. As to rating the Veteran's right ankle disability under Diagnostic Codes 5273 for malunion of the os calcis or astragalus or Diagnostic Code 5274 for astragalectomy, the Board notes that the record on appeal, including the findings at the December 2007 and December 2010 VA examinations as well as the X-rays taken at the examinations and the December 2009 magnetic resonance imaging evaluation (MRI), does not reflect the presence of these diagnoses. In fact, the December 2007 and December 2010 VA examiners specifically opined that she did not ever have surgery on the ankle and the December 2007 examiner opined that her os calcis was normal. These opinions are not contradicted by any other medical opinion of record. Thus, in the absence of objective evidence of these disabilities, Diagnostic Codes 5273 and 5274 do not afford a basis for a higher rating. Accordingly, the criteria for an increased schedular evaluation for the Veteran's ankle disability have not been shown, and this aspect of the appeal is denied. b. The Right Foot Disability The December 2007 rating decision granted service connection for right foot arthritis (right foot disability) and assigned a non compensable rating under 38 C.F.R. § 4.71a, Diagnostic Code 5284-5010, effective from July 9, 2007. Thereafter, a June 2009 rating decision granted a 10 percent rating for her right foot disability under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5279, also effective from July 9, 2007. 38 C.F.R. § 4.71a, Diagnostic Code 5010, provides that traumatic arthritis is rated as degenerative arthritis. Moreover, controlling laws and regulations provide 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5276, provides, as to acquired flat foot, a 10 percent rating if the disability is manifested by moderate pes planus with evidenced by the weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, or pain on manipulation and use of the feet (bilateral or unilateral). A 20 percent rating is warranted for severe pes planus with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and/or characteristic callosities (30 percent if bilateral). 38 C.F.R. § 4.71a, Diagnostic Code 5276. 38 C.F.R. § 4.71a, Diagnostic Code 5277, provides a 10 percent rating for weak foot, bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5278, provides a 10 percent evaluation for bilateral or unilateral acquired claw foot, with the great toe dorsiflexed, some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads. A 20 percent evaluation is warranted if the evidence demonstrates unilateral acquired claw foot with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. 38 C.F.R. § 4.71a, Diagnostic Code 5279, provides a 10 percent rating for unilateral or bilateral anterior metatarsalgia. 38 C.F.R. § 4.71a, Diagnostic Code 5280, provides a 10 percent rating for unilateral hallux valgus. 38 C.F.R. § 4.71a, Diagnostic Code 5281, provides a 10 percent rating for unilateral and severe hallux rigidus, 38 C.F.R. § 4.71a, Diagnostic Code 5282, provides a 10 percent rating for hammer toe of all toes. 38 C.F.R. § 4.71a, Diagnostic Code 5283, provides, as to malunion or nonunion of the tarsal, or metatarsal bones a 10 percent rating when moderate, a 20 percent rating when moderately severe, and a 30 percent rating when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5284, provides a 10 percent rating for a moderate foot injury, a 20 percent rating for a moderately severe foot injury, and a 30 percent rating for a severe foot injury. Initially, the Board finds that the Veteran is already receiving the maximum rating possible under Diagnostic Code 5003 and Diagnostic Code 5279. Therefore, the Board finds that the claim for a higher evaluation under these rating criteria is not warranted. Also, the Veteran is not shown to have pes planus, claw foot, hallux valgus, hallux rigidus, hammer toes or malunion or nonunion of the tarsal or metatarsal bones, and therefore evaluations under Diagnostic Codes 5276, 5278, 5280, 5281, 5282, and 5283 are not warranted. Likewise, since the Veteran is already assigned a 10 percent evaluation, and he does not have bilateral weak foot, a rating under Diagnostic Code 5277 is not warranted. As to a higher evaluation under Diagnostic Code 5284, the Board notes that the terms mild, moderate, moderately severe and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). The use of terminology such as mild or moderate by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2012). However, the record does not suggest that the Veteran's disabilities approximate the degree of severity required for a 20 percent rating. Specifically, the Board notes that at the December 2007 VA examination there was no evidence of painful motion, swelling, tenderness, instability, weakness, abnormal weight bearing, vascular abnormalities, or muscle atrophy. This, despite the Veteran having an antalgic limp, and complaining of pain, swelling, stiffness, and fatigability in the lateral part of the right foot with weekly flare-ups (more than two but less than seven) caused by walking. X-rays, however, did show soft tissue swelling and a calcaneal spur. At the subsequent December 2010 VA examination, the Veteran continued to complain of right foot pain, tenderness, swelling, heat, stiffness, weakness, and fatigability in the sole of the forefoot. She also reported that she had flare-ups two days a week each lasting one to three days brought about by prolonged walking and/or standing. However, she also reported that flare-ups do not cause any additional lost function, and that she can stand for up to a half-hour and walk up to one mile. On examination, there was evidence of painful motion and tenderness. However, there was no evidence of swelling, instability, weakness, abnormal weight bearing, vascular abnormalities, muscle atrophy, redness, or discoloration. She did not limp but nonetheless walked as if she was in pain. X-rays showed mild degenerative changes and a small calcaneal spur. Treatment records also noted her periodic complaints and/or treatment for right foot pain as well as its treatment with orthotics and injections. However, nothing in these records showed adverse symptomatology worse than what was reported at the above two VA examinations. While the term moderately severe is not defined by regulation, the absence of instability, weakness, abnormal weight bearing, vascular abnormalities, muscle atrophy, redness, and/or discoloration is indicative of no more than moderate impairment even when pain is considered. (For context, it should be noted that the Veteran carries a combined disability evaluation for her ankle and foot of 30 percent, and that actual loss of use of a foot is only awarded a 40 percent rating. See note to Diagnostic Code 5284.) Accordingly, the Board does not consider the symptoms presented in this case to reflect a moderately severe impairment. Thus, the Board finds that a higher evaluation is not warranted for right foot disability at any point during the appeal period. Extra-Schedular Consideration Under Thun v. Peake, 22 Vet App 111 (2008), 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 disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the disability with the established criteria found in the rating schedule for that disability. 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, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. When the an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, a comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluations for the disabilities are inadequate (which they are manifestly not), the Veteran does not exhibit other related factors such as those provided by the regulations as "governing norms." In this regard, while the December 2007 VA examiner noted that the Veteran's right foot disability interfered with her employment because it decreased mobility, the Veteran's rating contemplates interference with employment. Moreover, the December 2010 VA examiner also reported that she had worked full-time for the last 34 years as a neonatal intensive care unit (NICU) nurse and had not lost any time from work in the last twelve months because of her disabilities. Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria, and referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER A higher initial rating for a right ankle disability is denied. A higher initial rating for a right foot disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs