Citation Nr: 1331323 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-17 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability rating in excess of 10 percent for residuals of status-post left tibia fracture with plantar fasciitis and gastrocnemius soleus complex from January 13, 2005 through May 30, 2013. 2. Entitlement to an increased disability rating in excess of 30 percent for residuals of status-post left tibia fracture with plantar fasciitis and gastrocnemius soleus complex from May 31, 2013 REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service in the United States Army from April 1971 to March 1976. He also had service in the Air National Guard from April 18, 1987, to April 17, 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. By that rating action, the RO continued a 10 percent disability rating assigned to the service-connected residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex. The Veteran appealed this rating action to the Board. In August 2010, the Veteran testified at a videoconference hearing before an Acting Veterans Law Judge who subsequently retired. The Veteran accepted the offer of another hearing, and in November 2012, he testified before the undersigned Acting Veterans Law Judge at another videoconference hearing. Copies of both hearing transcripts have been associated with the claims files. In April 2013, the Board remanded the case for further evidentiary development. In a June 2013 rating decision, the RO granted a 30 percent rating for residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex effective May 31, 2013. The Board is satisfied that the requested development has been accomplished and further remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial, and not strict, compliance with the terms of a Board remand is required). The Board notes that in an April 2011 remand, the Board remanded the issue of whether new and material evidence had been received to reopen a claim for service connection for a right leg disorder, to include as secondary to the service-connected residuals of status-post left tibia fracture with plantar fasciitis and gastrocnemius soleus complex for the issuance of a statement of the case. The RO mailed the Veteran a statement of the case on March 16, 2012. A substantive appeal was not filed, however; hence, the issue was not certified to the Board and will not be addressed herein. Finally, in a letter dated in July 2013, the Board finds that the Veteran raised the issue of entitlement to a rating in excess of 10 percent for service-connected residuals of status-post left tibia fracture with plantar fasciitis and gastrocnemius soleus complex for the period of January 12, 2001, to January 12, 2005, which has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. From January 13, 2005, through May 30, 2013, the Veteran's residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex were manifested by malunion of the tibia and fibula with no more than slight impairment of the ankle. 2. From May 31, 2013, the Veteran's residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex were manifested by malunion of the tibia and fibula with marked ankle disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex were not met from January 13, 2005, through May 30, 2013. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5262 (2013). 2. The criteria for a rating in excess of 30 percent for residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex were not met during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5262 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim, including at two Board videoconference hearings, with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided notice in letters dated in February 2005, June 2011, August 2011 and April 2013, both prior to and subsequent to the rating decision on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim, including at his personal hearing before the undersigned. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal and the examinations are adequate and sufficient upon which to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2013). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, consideration must be given as to whether staged ratings should be assigned to compensate entitlement to a higher rating at any point during the pendency of the claim. When the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary (as has already been done in the present case). Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two rating is to be applied, the higher rating 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 (2013). When rating disabilities using Diagnostic Codes which provide a rating on the basis of loss of range of motion, VA must consider, to the extent possible, the degree of additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995), 38 C.F.R. §§ 4.40, 4.45 (2013). 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, the current diagnosis and demonstrable symptomatology. Any change in the Diagnostic Code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). After careful consideration of the evidence, any reasonable doubt remaining should be resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3 (2013). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For the period from January 13, 2005, to May 30, 2013, the Veteran's service-connected status-post left tibia-fibular fracture with plantar fasciitis and gastrocnemius soleus complex was rated 10 percent rating under Diagnostic Code 5262, which pertains to impairment of the tibia and fibula. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). Effective May 31, 2013, the disability was rated 30 percent disabling under the same Diagnostic Code. Pursuant to Diagnostic Code 5262, 10, 20 and 30 percent ratings are warranted for malunion of the tibia and fibula with slight, moderate and marked knee or ankle disability, respectively. A maximum 40 percent rating is assigned where there is evidence of nonunion of the tibia and fibula with loss motion, requiring a brace. Id. Diagnostic Code 5311, pertains to the evaluation of muscle injuries to Muscle Group (MG) XI. Under Diagnostic Code 5311, a moderate disability of this muscle group warrants a 10 percent rating, a moderately severe disability warrants a 20 percent rating, and a severe disability warrants a 30 percent rating. 38 C.F.R. § 4.73, Diagnostic Code 5311 (2013). The Veteran seeks disability ratings in excess of 10 and 30 percent for his service-connected residuals status-post left tibia-fibular fracture with plantar fasciitis and gastrocnemius soleus complex. He has provided written statements and personal hearing testimony that he has experienced an increase in symptoms, such as pain, fatigue, limited movements (e.g., avoids taking the stairs at work and climbing ladders), and decreased strength. He maintains that he wears cowboy boots in order to stabilize his left leg. (Transcript (T.) pages (pgs.) 9-12, 14, 20)). VA examined the Veteran in September 1999, March 2005, November 2011 and January 2012, and again in May 2013 (pursuant to the Board's most recent remand) to determine the severity of his service-connected residuals status-post left tibia-fibular fracture with plantar fasciitis and gastrocnemius soleus complex. Upon VA examination in September 1999, there was no neurological range of motion deficit only a bony deformity in the mid anterior leg and plantar fasciitis. It was concluded that the Veteran's back pain was not due to his left leg disability. Upon VA examination in March 2005, the Veteran gave a history of fracturing his tibia and fibula in service. He was placed in a long-leg cast, but no surgery was performed. Presently, he reported that he had trouble wearing boots, and occasionally would get cramps in the left foot. The examiner noted that there was "questionable weakness, fatigue, and lack of endurance." Clinical evaluation revealed an obvious deformity but with good alignment in the distal third of the leg. He could dorsiflex the left foot on the ankle as much as 80 degrees and there was 30 degrees of plantar flexion from that point. The left lower extremity was one-half inch shorter than the right. Range of motion of the left knee was from 0 degrees to 140 degrees with pain in the left thigh. X-rays showed an old healed fracture deformity with slight anterior bowing. The diagnosis was old healed malunion fracture of the tibia and fibula. The November 2011 VA examiner provided an addendum to her report in late January 2012. (See January 2012 VA addendum to November 2011 VA examination report). A cumulative review of the these reports reflect that the service-connected left leg was manifested by objective evidence of a malunion of the left tibia/fibula with slight (italics added for emphasis) ankle disability due to gastroc muscle fatigue and pain with prolonged mobility; mild malunion of the tibia/fibula (italics added for emphasis); normal strength of the left leg when compared to the sound side (right leg);shortening of the left lower extremity (3/8 of an inch) as compared to the right leg; and, involvement of Muscle Group (MG) XI, the muscles that function to provide propulsion in plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. (See November 2011 and January 2012 VA orthopedic and bones examination reports, respectively, and January 2012 VA addendum to the November 2011 VA examination report). The Board finds that the clinical findings detailed above are essentially commensurate with the assigned 10 percent rating under Diagnostic Code 5262 for the period from January 13, 2005, through May 30, 2013. In other words, the Veteran's left leg impairment resulted in no more than mild impairment of the knee or ankle or no more than mild impairment of Muscle Group XI. He had virtually full range of motion of the both the knee and the ankle, and only slight muscle atrophy and weakness. Additionally, during this time period, the Veteran was not entitled to a separate or higher 20 percent rating under Diagnostic Code 5275 for shortening of the bones of the lower extremities because the objective medical reports do not demonstrate that his left leg is two (2) to two (2) and one-half inches shorter (5.1 centimeters to 6.4 centimeters), as compared to the right leg as required by that diagnostic code. 38 C.F.R. § 4.71, Diagnostic Code 5275 (2013). In fact, the reports clearly show that the difference is less than one inch, which is noncompensable. Notably, the Board also observes that during this time period, the Veteran did not seek medical treatment for his service-connected left leg disability. VA outpatient treatment reports and private medical records dated from 1998 through 2008 show that he was seen predominantly for complaints related to back pain with neurological symptoms, coronary artery disease, and cancer. In September 1993, it was noted that he had sciatica, secondary to degenerative disc disease. Ankle jerk was decreased on the left side due to prior fracture with some atrophy of the tibialis muscle but no fasciculations. In January 1998, he was seen for chest pain and back pain. He had a myocardial infarction. It was noted that the Veteran was generally healthy and did not take any medications on a regular basis. Additionally, it was noted that he had "no medical conditions for which he sees a doctor regularly." He reported chronic low back pain that was stable. Life-long tobacco use was also noted. In June 2008, it was noted that strength in the lower extremities was 5/5. Finally, the Board points out that any neurological symptoms the Veteran experienced in the left leg were clearly attributed to his nonservice-connected low back disability. For example, in an April 2006 VA outpatient record, it was reported that he had bilateral S1 radiculopathy confirmed by EMG studies. Hence, a separate compensable rating for neurological impairment of the left leg is not warranted at any time during the appeal period. The Veteran was afforded another VA examination on May 31, 2013. Clinical evaluation showed that flexion of the left knee was from 0 degrees to 140 degrees. He was able to perform repetitive use testing, but there was deformity, atrophy, and weakened movement. Additionally, there was pain on palpation at the fracture site, and the Veteran continued to suffer from plantar fasciitis. Based on this clinical evaluation, and with consideration of 38 C.F.R. §§ 4.40, 4.45 and DeLuca, supra, the RO concluded that the Veteran had marked ankle disability as a result of his tibia and fibula fracture and assigned a 30 percent rating for the Veteran's left leg disability from the date of the examination. The Board finds that a rating in excess of this amount is not warranted based on the clinical evidence of record detailed above. To warrant a 40 percent rating, the evidence must demonstrate that there is nonunion of the tibia and fibula with loss of motion, requiring a brace. This clearly has not been demonstrated by any of the clinical records during the appeal period. The Veteran's fracture residuals are consistently described as entailing a malunion rather than a nonunion, and the Veteran has not been prescribed a brace. Additionally, the Veteran has continually demonstrated virtually full range of motion of the knee and his ankle is not ankylosed. Hence, a higher rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5260, 5261 or 5270 is not warranted. Finally, the Board concludes that separate ratings under Diagnostic Codes 5262 and 5311 may not be assigned because the symptoms are overlapping and would essentially be duplicative. See 38 C.F.R. § 4.14 (2012); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In conclusion, an award of ratings in excess of 10 and 30 percent for the relevant time periods for the Veteran's service-connected residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex is not supported by the competent medical and competent and credible lay evidence of record. As the preponderance of the evidence is against the award of increased ratings at any time during the appeal period, the benefit of the doubt doctrine is not applicable in the instant appeal and the claim must be denied. See 38 U.S.C.A. § 5107(b); Alemany, supra. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has considered whether extraschedular consideration is warranted. See Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the record does not establish that the rating criteria are inadequate for rating the Veteran's service-connected left leg disability since the symptoms reported and documented in the record comport with the symptoms outlined in the rating criteria. Notably, the Veteran testified that he continues to work in a full-time capacity. Consequently, the Board finds that the effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Hence, referral for an extraschedular rating is unnecessary at this time. There is also no basis to recognize an implied claim for a total disability rating based on individual unemployability under Rice v. Shinseki, 22 Vet. App. 447 (2009), as there is no allegation that the Veteran is precluded from gainful employment as a result of this service-connected disability. ORDER From January 13, 2005, through May 30, 2013, a rating in excess os 10 percent for residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex is denied. From May 31, 2013, a rating in excess of 30 percent for residuals status-post tibia-fibula fracture with plantar fasciitis and gastrocnemius soleus complex is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs