Citation Nr: 1541829	
Decision Date: 09/28/15    Archive Date: 10/05/15

DOCKET NO.  13-18 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to a scheduler rating in excess of 30 percent for post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease.

2.  Entitlement to an extrascheduler rating for post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease.

3.  Entitlement to a total disability evaluation based on individual unemployability due to service connected disorders 


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

U. Ifon, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1967 to June 1970.  

This matter arises before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The issues of entitlement to an extrascheduler disability rating for post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease; and a total disability evaluation based on individual unemployability due to service connected disorders are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

In a February 2015 statement, the Veteran withdrew his hearing request.  Therefore, his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2015).


FINDING OF FACT

The Veteran is in receipt of the maximum scheduler rating available for an injury to muscle Group X and his right ankle disability is not manifested by nonunion of the tibia or fibula with loose motion, requiring a brace.  There is no objective evidence of right ankle ankylosis.


CONCLUSION OF LAW

The criteria for a scheduler disability rating in excess of 30 percent for post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.63, 4.71a, 4.73, Diagnostic Code 5310-5262 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in February 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined.  

VA has fulfilled its duty to assist.  The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from him regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him VA examinations during the appeal period.  The Veteran was afforded pertinent VA examinations in March 2011 and November 2014.  The examiners provided sufficient detail for the Board to make a decision and the reports are deemed adequate with respect to this claim.  

Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran.  Bernard v. Brown, 4 Vet, App. 384, 394 (1993).  The appeal is now ready to be considered on the merits.

Increase Rating Claim

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Separate evaluations may be assigned for separate periods of time based on the facts found.  Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
 
When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995).  
 
The Veteran's entire history is reviewed when making disability evaluations.  See 38 C.F.R. § 4.1 (2015); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  See 38 C.F.R. § 4.3.

Right Ankle Disability

The Veteran's post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease are currently rated as 30 percent disabling under Diagnostic Code 5310-5262.  38 C.F.R. §§ 4.71a, 4.73.  He contends a higher rating is warranted.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.

Diagnostic Code 5262 measures the nature and extent of any impairment of the tibia and fibula, assigning a 30 percent disability evaluation for malunion with marked knee disability.  38 C.F.R. § 4.71a.  A 40 percent evaluation, the highest available under this code, is assigned for nonunion with loose motion, requiring the use of a brace.  Id.  

Diagnostic code 5310 evaluates Group X muscle injuries to the foot and assigns a 30 percent rating, the highest available under this code, for severe muscle injuries of the foot.  38 C.F.R. § 4.73.

In a February 2011 statement, the Veteran noted he could not continue in his occupation due to pain.  He also indicated that his shoes wore out on the right side of this right foot "in no time."

At a March 2011 VA ankle examination, he reported symptoms of pain, weakness, stiffness, instability, giving way, fatigability, and lack of endurance.  He treated these symptoms with over-the-counter medication.  Flare-ups occurred 2 to 3 times a day with symptoms of pain, weakness and fatigue.  The flare-ups prevent him from running, jumping or standing for more than 10 minutes.  The Veteran indicated he used a cane and crutches occasionally for stability.  He also reported his right ankle popped about once a week.  A physical examination revealed no ankylosis.  Dorsi flexion was to 20 degrees and plantar flexion was to 35 degrees both before and after repetitive motion studies.  There was objective evidence of painful motion.  There was evidence of pain after repetitive motion.  The appellant's gait was abnormal with no functional limitation in standing or walking.  The examiner noted there was no instability and the Veteran's disability mildly affected his occupation and daily activities.

Examination of the scar that was present revealed a 10 centimeter by 0.5 centimeter linear scar that was superficial and not painful or deep.  There was no skin breakdown, inflammation, edema or keloid formation.  The scar did not cause any limitation of motion.

At a March 2013 VA orthopedic consultation, radiographs of the right ankle showed no significant arthritis and no marked malalignment.  On examination, there was evidence of significant valgus and pain.  The examiner indicated there was some limitation of motion, but no degree of limitation was noted.  

At a November 2014 VA ankle examination, the Veteran reported a history of chronic daily pain and stiffness.  He could no longer drive with his right foot and the pain increased with walking, and dorsi/plantar flexion activities.  He continued to use over-the-counter pain medication.  The Veteran denied flare-ups but reported functional loss in the form of worsening pain when "on his feet a lot or on uneven ground."  Range of motion testing revealed dorsiflexion to 0 degrees and plantar flexion to 15 degrees.  The examiner noted his dorsiflexion was actually up to -10 degrees and the Veteran could not assume the neutral positon of 90 degrees.  This limitation in motion contributed to his functional loss of limited walking and an inability to drive with his right foot.  There was evidence of pain on examination, pain with weight bearing, and localized tenderness or pain on palpation.  After repetitive use, there was no additional loss of function or range of motion.  Repetitive motion also produced additional functional loss due to pain.  Muscle strength was reduced due to his disability.  There was no evidence of ankylosis, instability or crepitus.  The Veteran indicated he used crutches occasionally.  X-ray findings revealed no change in appearance.  There was evidence of a scar that was not painful or unstable and did not have a total area equal to or greater than 39 square centimeters.  The actual length of the scar was 7 centimeters by 0.2 centimeters. 

After reviewing the evidence of record, the Board finds that the Veteran is in receipt of the highest scheduler rating available for a Group X muscle injury to the foot under 38 C.F.R. § 4.73.  The Board is also unable to grant a disability evaluation in excess of 30 percent for impairment of the tibia and fibula because the evidence reveals no suggestion of nonunion with loose motion, requiring the use of a brace.  Without any medical evidence of the aforementioned, the Board is unable to grant a disability evaluation higher than 30 percent during this period.  38 C.F.R. § 4.71a.  

The Board notes the remaining Diagnostic Codes for the ankle are inapplicable because there has been no evidence of ankylosis.  While there are ratings available for malunion of the os calcis or astragalus, or an astragalectomy there is no basis for an increased rating under either given than neither affords a rating in excess of 30 percent.  38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274.  

The Board further notes that the maximum disability rating for limited motion of the ankle is 20 percent, and limitation of motion has already been contemplated under Diagnostic Code 5262.  38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5271.

While the Veteran is competent to describe the symptoms associated with his right ankle, the degree impairment requires an objective examination conducted by a trained medical professional.  Accordingly, the Board assigns more probative value to the medical examinations of record than to the Veteran's lay contentions.

The Board notes a separate rating is not warranted under Diagnostic Code 5003 for degenerative arthritis established by X-ray findings because the Veteran's limitation of motion is already contemplated under the Diagnostic Code 5262.  See 38 C.F.R. §§ 4.14, 4.71a.


ORDER

Entitlement to a scheduler disability rating in excess of 30 percent for post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease, is denied.


REMAND

Although the Veteran fails to meet the criteria for a right ankle disability on a scheduler basis, the Board is remanding the matter for extrascheduler consideration.  In this regard, the Veteran contends he is no longer able to drive with his right foot, and his right ankle disability interferes with his ability to work.  For the foregoing reasons, a remand is necessary for submission to the Under Secretary for Benefits or the Director of Compensation Service for extrascheduler consideration in the first instance.  See 38 C.F.R. § 3.321.  

Further, in Rice v. Shinseki, 22 Vet. App. 447  (2009), the United States Court of Appeals for Veterans Claims held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is "part of," and not separate from, a claim of entitlement to an increased rating.  Id. at 453. A claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is raised by the record.  In the present case, however, additional development is required before the claim can be adjudicated, including providing appropriate notice and assistance pursuant to the VCAA and adjudicating the claim.

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran VCAA notice which informs him of the evidence necessary to establish entitlement to a total disability evaluation based on individual unemployability due to service connected disorders.  The RO must then adjudicate the claim for a total disability evaluation based on individual unemployability due to service connected disorders.  If the benefit is not granted to appellant's satisfaction, the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders must be returned to the Board following appropriate action.

2.  Before returning this case to the Board refer the question of entitlement to an increase disability evaluation for post operative residuals of a right ankle gunshot wound, with hardware and degenerative joint disease to the Under Secretary for Benefits or the Director of Compensation Service for extrascheduler consideration consistent with 38 C.F.R. § 3.321.


The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).




______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs