Citation Nr: 1327694 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-12 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for disability of the left foot, to include the great toe and ankle. 2. Entitlement to a compensable initial disability rating for service-connected status post left tibia fracture. ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1965 to August 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that the claims file includes a statement of the case (SOC) that was issued in April 2011. Although the claims file does not contain an actual Form 9, the Veteran did submit a June 2011 statement reflecting his disagreement with the decision rendered by the RO. The RO accepted the Veteran's statement as a substantive appeal in lieu of a Form 9. Similarly, the Board finds that the Veteran's June 2011 statement in response to the SOC was in lieu of a Form 9, and thus represents a timely appeal to the Board. The Board has recharacterized the first claim noted on the previous page of this decision. Although the RO characterized the claim for compensation as a disability to the left foot and great toe, the Veteran and the VA contracted medical examiner discussed his left ankle in conjunction with the claim. It thus appears that the Veteran intends this claim to be construed more broadly, to include all potential left foot conditions. See Clemons v. Shinseki, 23. Vet. App. 1, 5 (2009) (a claimant's intent in filing a claim is paramount to construing its breadth). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the documents are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The Veteran had a hairline fracture of the left tibia during service in 1965. 3. The Veteran does not have a current left great toe disability. 4. The Veteran's left ankle is currently strained, but is not related to service. 5. From January 2010, the residuals of the in-service fracture of the left tibia have not manifested in any compensable manner; the Veteran does not suffer any range of motion loss or painful motion as a result of the fracture. CONCLUSIONS OF LAW 1. A left foot disability, to include the great toe and ankle, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1137, 1154, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. The criteria for a compensable initial rating for status post left tibia fracture have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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 veteran is expected to provide. Notice should be provided to the veteran before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, notice was provided to the Veteran in February 2010, prior to the initial adjudication of the claim in April 2010. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the February 2010 letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, the duty to notify has been fulfilled. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, private treatment records, and the Veteran's own assertions in support of his claim. There is evidence in the file that the Veteran receives Social Security Administration (SSA) benefits. Where there is mention of SSA benefits in the record, care must be taken to address whether a reasonable possibility exists that the SSA records are relevant to the claim on appeal. See Golz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010). In this instance, the RO sought any available records from the SSA. In a memorandum received in April 2010, the SSA responded that there were no disability records for the Veteran at the SSA. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for a VA contracted examination in April 2010 to assess the severity of the Veteran's post left tibia fracture and the Veteran's left foot. The Board finds that the examination obtained in this case was more than adequate, as it provides findings relevant to determining service connection for the left foot and criteria for rating the post left tibia fracture. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Legal Criteria, Factual Background, and Analysis A. Service Connection for Left Foot, to include the Great Toe and Ankle The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The service treatment records indicate that the Veteran suffered a hairline fracture of his left tibia in March 1965 while running. The leg was casted and the records indicate he did well except for some right upper quadrant complaints that he had experienced for the previous 12 years. Two months after the accident, the cast was removed. The narrative summary provides that after the removal of the cast, "extensive physical therapy was carried out, the crutches were discarded, and the leg healed well." Further, the narrative provides that when the cast was removed there was "minimal paresis to the left great toe" but it was "anticipated this will clear within the next two months." Nothing is noted about the ankle. There are no further service records as the Veteran was soon thereafter separated from service due to a preexisting psychological disorder. The Veteran filed his claim in January 2010, almost 45 years after service. He asserts that his alleged left foot disability, to include the great toe and ankle, was caused because the cast used in 1965 was too tight and that even after his repeated complaints the cast was not re-fitted. When the cast was removed, the claimant alleges that his left foot would not bend down and he could not bend his big toe. He also alleges that he experienced an "odd feeling" running across his great toe and foot. There are no treatment records from the Veteran's separation from service until January 2010 and the Veteran has not indicated any records exist. In the private treatment records dated in January 2010, the Veteran reported a history that he lost flexion and extension of his great toe after the cast was removed. The treating physician reported that the great toe has loss of active extension and diagnosed extensor tendon or muscle injury to the great toe. The record also notes 15 degrees of extension in the left ankle, "perhaps 5-10" degrees less than the right, and flexion limited to 10 degrees compared to 45 degrees on the right. A VA contracted medical examination was conducted in April 2010. The Veteran reported that his condition with the left foot has existed for 45 years, since the March 1965 accident. He did not report any abnormal sensation, pain, anesthesia, weakness of the affected parts, paralysis of the affected parts, or any overall functional impairment from the condition. He explained that he has not received treatment for the condition. At the physical examination, the VA contracted examiner reported that the Veteran has normal posture and walks with a normal gait. Examination of the feet revealed no abnormal signs of weight bearing or breakdown, callosities, or any unusual shoe wear pattern. Examination of the feet revealed no tenderness, painful motion, weakness, edema, heat, instability, atrophy, or disturbed circulation. Palpation of the plantar surface revealed no tenderness. There was active motion in the metatarsophalangeal joint of the left great toe. Alignment of the Achilles tendon was normal on both feet. The examiner noted the absence of pes planus, pes cavus, hammer toes, Morton's Metatarsalgia, hallux valgus, and hallux rigidus. The examiner found no limitation with standing or walking in the Veteran and noted that Veteran does not require any type of support to walk. The examiner concluded there is no current diagnosis of any disability with the left foot and great toe. The opinion is supported by the examiner's analysis of the findings. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). While the private outpatient records from January 2010 mention a loss of extension in the great toe, the Board finds the VA contracted medical examination to carry more weight and to be more probative. The necessary medical tests were conducted at the examination with the expressed purpose of determining a diagnosis and the findings were comprehensive and detailed as opposed to the January 2010 record. The Veteran's ankles showed no sign of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding movement. There was no ankylosis in the ankles. Range of motion of the left ankle was reported as 20 degrees dorsiflexion with 30 degrees plantar flexion. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examiner diagnosed a current left ankle strain; however, the examiner specifically opined that it is not due to the 1965 hairline fracture of the left tibia. The examiner found that there is no pathophysiology relationship between the current ankle strain and the fracture of the tibia. The Board also considered the Veteran's statements. The Veteran claimed in his original claim, in the notice of disagreement dated in December 2010, and in his statement in June 2011 that his left foot problems, both the great toe and ankle, were caused because the cast used in 1965 was too tight. He states that after the cast was removed, he was unable to properly bend his foot and toe. He claims that a witness to the removal of the cast exclaimed that the cast had damaged his muscle tone. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. At 470. However, the Board finds it unlikely that the cast caused any disability in his foot. The Board grants greater probative weight to the service treatment records. The service treatment records fully document the treatment and recovery of the Veteran's in-service accident, including the paresis of the great toe. There is no mention of complaints about the tightness of the cast or about further problems with the toe or ankle. Further, the Veteran's credibility is discredited because he also claims he was separated from the military because of his broken tibia and he claims to have been forced to sign a waiver of his right to sue the doctor who treated his leg injury. This is highly improbable. The service records indicate that the Veteran was dismissed from service due to a preexisting psychological disorder. Also, the Veteran's contention about his alleged disability is rebutted by the fact that he received no treatment in the intervening 45 years. The lack of any medical records from 1965 to 2010 could be explained in light of the repeated complaints the Veteran makes about doctors. However, despite his mistrust of doctors, the Board views the lack of any treatment for a foot disability in conjunction with the fact that the VA contracted examiner found no disability in the toe and found an unrelated condition in the ankle as highly probative. As the negative VA contracted medical opinion carries the most probative weight, the preponderance of the evidence weighs against a finding that the Veteran has a current left foot disability. As such, service connection for the left foot disability, to include the great toe and ankle, is not warranted on any basis. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. B. Initial Rating for Post Fracture of Left Tibia Ratings for a service-connected disability are determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155. Disabilities are viewed, and examinations are interpreted, historically, in order to accurately reflect the elements of the disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if it more nearly approximates such rating. See 38 C.F.R. §§ 4.7, 4.21. The United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The pendency of this appeal dates to the original rating decision granting service connection in April 2010. Consequently, the Board will evaluate the Veteran's disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. In evaluating musculoskeletal system disabilities based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, 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). Separate ratings for limitation of motion in flexion and in extension of a knee may be assigned. See VAOGPREC 9-2004 (September 17, 2004). Also, a compensable degree of limited motion under DCs 5260 and 5261 need not be shown; rather, a compensable rating may be granted, in addition to a rating for instability under DC 5257, if there is X-ray evidence of arthritis and also painful motion under 38 C.F.R. § 4.59. Also, a separate disability evaluation may be assigned for arthritis of the knee under DC 5003 in addition to the rating for instability under DC 5257. VAOPGCPREC 9-98 (August 14, 1998) and VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997). Under DC 5262, the Diagnostic Code used by the RO in this instance, malunion of the tibia or fibula with slight knee disability warrants a 10 percent rating; with moderate knee disability 20 percent is assigned; and with marked knee disability a 30 percent rating is assigned. The words "slight", "moderate" and "severe" are not defined in the VA 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. Under DC 5263 genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated, warrants a maximum 10 percent rating. Under DC 5260 (limitation of flexion of the leg), a 10 percent evaluation is warranted for flexion limited to 45 degrees. A 20 percent evaluation is warranted for flexion limited to 30 degrees and a 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261 (limitation of extension of the leg), a 10 percent evaluation is warranted for extension limited to 10 degrees. A 20 percent evaluation is warranted for extension limited to 15 degrees; a 30 percent evaluation is warranted for extension limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. Under DC 5256 favorable ankylosis of a knee, at an angle in full extension, or in slight flexion between 0 degrees and 10 degrees warrants a minimum rating of 30 percent. The next higher rating of 40 percent requires ankylosis in an unfavorable position. Under DC 5257, a 20 percent disability rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent disability rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent evaluation, the highest and only rating available under that schedular provision, may be assigned where there is evidence of dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. Symptomatic residuals of removal of a semilunar cartilage warrant a maximum 10 percent rating. 38 C.F.R. § 4.71a, DC 5259. With respect to limitation of motion, the Board has considered application of Diagnostic Code 5271 (limited motion of ankle) in rating the Veteran's current disability. The Board also considered application of Diagnostic Codes 5272 (ankylosis of subastragalar or tarsal joint), 5273 (malunion of os calcis or astragalus), and 5274 (astragalectomy), all pertaining to the ankle. As discussed, the Veteran suffered a fracture to his left tibia in March 1965. He was service connected for that disability and awarded a noncompensable (0 percent) disability rating. The private treatment records from January 2010 note soft, non-tender swelling and sensitivity in the proximity of the left tibia. As explained in the service connection section above, the record also notes 15 degrees of extension in the left ankle, "perhaps 5-10" degrees less than the right, and flexion limited to 10 degrees compared to 45 degrees on the right. The 0 percent disability rating was based on the VA contracted medical examination conducted in April 2010. At the examination, the Veteran reported localized aching pain in his left leg which occurs 5 times per day and each time lasting for 5 hours. Between 1 to 10, with 10 being the most extreme level of pain, the Veteran said his pain level is at 2. Rest alleviates the pain and the Veteran does not require medication to deal with the pain. He also reported not receiving any treatment for the condition. At the examination, the examiner noted normal posture and no abnormal gait or walk. The examiner noted no malunion between the tibia and fibula. Malunion is required for a 10 percent rating under DC 5262. There was no indication of a malunion to the os calcis or astragalus. The X-ray showed "an old, healed fracture." Range of motion of the knee was reported as normal with 140 degrees flexion and 0 degrees extension. The knees showed no sign of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding movement. Examination revealed no locking pain, genu recurvatum, or crepitus in either knee. There was no ankylosis in the knees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. As discussed above, the range of motion of the ankle was reported as 20 degrees dorsiflexion with 30 degrees plantar flexion. However, in regard to the diagnosed ankle strain, the examiner opined that it is not due to the 1965 hairline fracture of the left tibia. The examiner found that there is no pathophysiology relationship between the current ankle strain and the fracture of the tibia. Further, it was noted that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The Board also considered the Veteran's assertions about his condition. The Veteran is competent to testify as to his symptoms. See Barr v. Nicholson, 21 Vet. App. 303. As discussed above, the Board does not find the Veteran's statements to be credible and gives more weight to the VA contracted examiner. The objective medical evidence leads the Board to conclude that the Veteran's disability is non-compensable. For these reasons and bases, the preponderance of the evidence is against the Veteran's claim, in turn meaning there is no reasonable doubt to resolve in his favor and his claim for a higher rating must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518-19 (1996). C. Extraschedular Consideration of Increased Rating for Post Fracture of Left Tibia The Board finds that there is no evidence of an exceptional or unusual disability picture associated with the Veteran's service-connected status post fracture tibia, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The Veteran's disability does not produce a greater impact on his occupational capacity that renders impractical the criteria contained in 38 C.F.R. § 4.97, Diagnostic Code 6602. Furthermore, the evidence does not indicate that the Veteran's condition requires treatment through frequent hospitalizations. In the 45 years since he left service, there is no indication that the Veteran received any treatment. The clinical evidence demonstrates that the level of industrial impairment individually attributable solely to the service-connected status post fracture tibia is adequately contemplated in the criteria of the applicable rating schedule. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board is not required to discuss the possible application of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993). The Board notes that as the Veteran has not contended, nor does the evidence show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER 1. Entitlement to service connection for disability of the left foot, to include the great toe and ankle is denied. 2. Entitlement to a compensable initial disability rating for service-connected status post left tibia fracture is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs