Citation Nr: 1603760 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-34 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for residuals of right ankle fracture with decrease range of motion and scar, rated as 10 percent disabling prior to May 1, 2013, and as 20 percent disabling since. 2. Entitlement to an increased rating for low back strain with degenerative disc disease (DDD) and scoliosis, rated as 10 percent disabling prior to May 1, 2013, and as 20 percent disabling since. 3. Entitlement to an increased rating higher than 10 percent for left thigh meralgia paresthetica. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Wilson, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to July 2004, including service in Southwest Asia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in relevant part, denied entitlement to disability ratings higher than 10 percent for service-connected left thigh meralgia paresthetica, for low back strain with DD and scoliosis, and for right ankle fracture with decreased range of motion and scar. The Board remanded the Veteran's claims for additional evidentiary development in March 2013. The issue of entitlement to higher disability ratings for the service-connected low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran's service-connected right ankle disability was manifested by no more than moderate limitation of motion prior to May 1, 2013, and has been manifested by marked limitation of motion since, and such limitation of motion has been accompanied by symptoms of pain and occasional swelling. 2. The Veteran's left thigh meralgia paresthetica has been manifested by no more than symptoms of decreased sensation to vibration, pain, and light touch, intermittent pain, paresthesias and/or dysesthesias, and numbness; and has been identified as consisting of no more than mild, incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent, for the period prior to May 1, 2013, and for a disability rating higher than 20 percent, for the period since, for right ankle fracture with decrease range of motion and scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.71a, Diagnostic Code (DC) 5271 (2015). 2. The criteria for a disability rating higher than 10 percent for left thigh meralgia paresthetica have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.120, 4.123, 4.124a, DC 8526 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Adequate VCAA notice in an increased rating claim requires that the claimant be told that to substantiate a claim medical or lay evidence must be provided demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008); vacated and remanded in part Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran received the required VCAA notice in a March 2008 letter. VA and private treatment records have been obtained and the Veteran has been afforded adequate VA examinations which have included all findings needed to evaluate his service-connected right ankle and right thigh disabilities. Although the most recent VA examination in May 2013 did not include findings with respect to the degree of additional limitation of motion that would be present during reported flare-ups, these findings are irrelevant where the Veteran's right ankle disability has been assigned the highest disability rating based on limitation of motion. Cf. DeLuca v. Brown, 8 Vet. App. 202 (1995). The AOJ substantially complied with the Board's March 2013 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the claims in order to afford the Veteran a new VA examination to fully assess the severity of his service-connected knee and thigh disabilities and to obtain VA treatment records. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his right ankle and left thigh disability claims on appeal. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Higher Disability Ratings Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Veteran's entire history is reviewed when assigning a disability evaluation, as required under 38 C.F.R. § 4.1, where the evidence demonstrates distinct 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 may be necessary. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran bears the burden of presenting and supporting his claims for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any material issue, the Board gives the benefit of the doubt to the claimant. Id. A. Right Ankle The current 20 percent rating for the Veteran's right ankle disability was assigned on the basis of moderate limitation of ankle motion under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5271. Disabilities of the ankle are typically rated under the rating criteria found at Diagnostic Codes 5270 thorough 5274. Limitation of motion is rated under Diagnostic Code 5271, which provides for a 10 percent disability rating for moderate limitation and a 20 percent disability rating for marked limitation. The medical evidence does not provide any indication of ankylosis (DCs 5270 and 5272), malunion of the os calcis or astragalus (DC 5273), or of astragalectomy (DC 5274). Additionally, while a right ankle scar associated with the service-connected disability is present, the scar has not been found to be unstable or painful, and does not cover an area greater than six square inches. Thus, a separate rating for the scar is not warranted. Cf. 38 C.F.R. § 4.118, DCs 7801-7804 (2008 & 2015). The Veteran was afforded a VA examination of his right ankle in April 2008. Dorsiflexion was from zero to 10 degrees with pain at 10 degrees. Plantar flexion followed a normal range of motion from zero to 45 degrees, with pain at 45 degrees. An April 2010 VA examination report indicated that the Veteran's claims file had not been reviewed. The Veteran reported symptoms of pain in the ankle with aching and stiffness, becoming sharp pain with the extremes of range of motion. He reported occasional swelling. The Veteran denied having incapacitating flare-ups of right ankle disability. The Veteran's ranges of dorsiflexion and plantar flexion motion were normal, from zero to 20 degrees and zero to 45 degrees, respectively. On examination, the right ankle joint was stable, and there was no evidence of heat, redness, swelling, or tenderness. A May 2011 addendum to the April 2010 VA examination report noted that the Veteran's claims file had been reviewed. The only additional finding was that a May 2011 x-ray of the right ankle showed no changes from prior, August 2004, findings. A May 2013 VA examination report revealed the Veteran's complaints of flare-ups of ankle disability lasting from one to two hours when standing more than 15 to 20 minutes. Right ankle plantar flexion was to 20 degrees, and right ankle dorsiflexion was to 10 degrees. Repetitive-use testing revealed no change in the range of motion. The Veteran reported using a brace regularly; however, no functional loss and/or functional impairment of the ankle were noted. There was no evidence of joint instability, ankylosis, or additional functional conditions. A nine centimeter, well-healed, non-tender scar was present on the lateral right ankle. The veteran reported the regular use of a brace and constant use of a cane. Imaging studies showed evidence of degenerative or traumatic arthritis. The evidence of record shows that prior to the May 2013 VA examination, the Veteran had only moderate limitation of dorsiflexion, but that he did not have limitation of plantar flexion, as reported in the April 2008 VA examination report. While he reported occasional swelling during the April 2010 VA examination, he was found to have normal ranges of right ankle motion at that time; thus there was no indication of additional limitation of motion due to swelling. These findings are insufficient to reach the level of marked limitation of motion necessary for a higher 20 percent disability rating for the period prior to May 1, 2013. Based on the results of the May 2013 VA examination, showing more pronounced limitation of right ankle motion, the Veteran was assigned a 20 percent disability rating for marked limitation of right ankle motion, the highest disability rating available for an ankle disability based on limitation of motion. The Veteran does not have required ankylosis to merit the assignment of a higher rating. Therefore, a higher disability rating is not warranted the right ankle disability for any part of the appellate period. Higher ratings are potentially available under 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2015), which contemplates residuals of a foot injury. The Veteran's disability involves the ankle rather than the foot, and there are specific diagnostic codes for limitation of ankle motion and scarring. As there are specific codes for the Veteran's ankle disabilities, rating under Diagnostic Code 5284 is not warranted. Copeland v. McDonald, 27 Vet. App. 333 (2015). A preponderance of the evidence is against the Veteran's claims for a disability rating higher than 10 percent prior to May 1, 2013, and for a rating higher than 20 percent since, for right ankle fracture with decreased range of motion and scar. 38 U.S.C.A. § 5107(a). B. Left Thigh Meralgia Paresthetica The Veteran's left thigh disability has been described as of exclusively neurological origin, not involving orthopedic disability. The disability has been rated using the criteria for rating diseases of the anterior crural nerve (femoral) pursuant to 38 C.F.R. § 4.124a, DC 8526. The rating schedule provides guidance for rating neurologic disabilities. Cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Under Diagnostic Code 8526, mild incomplete paralysis of the anterior crural nerve is assigned a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis. A rating of 30 percent requires severe incomplete paralysis. A maximum 40 percent rating requires complete paralysis. 38 C.F.R. § 4.124a, DC 8526. The April 2008 VA examination report described decreased sensation of the lateral aspect of the Veteran's left leg. Decreased sensation to vibration, pain, and light touch (all noted as one out of two), were described in the left lower extremity. The left knee jerk reflex was absent. In the April 2010 VA examination report, the examiner additionally noted that the meralgia paresthetica of the Veteran's left thigh was not related to his low back disability, but rather due to localized compression neuropathy of a single nerve. During the May 2013 VA examination, symptoms of moderate intermittent pain, paresthesias and/or dysesthesias, and numbness were noted in the left lower extremity. Reflex examination revealed an absent knee reflex. Decreased sensation was noted in the left thigh/knee. The examiner identified a mild, incomplete paralysis of the left anterior crural (femoral) nerve. The May 2013 VA examiner also noted that meralgia paresthetica is a term used to describe the clinical syndrome of pain and/or dysesthesia in the anterolateral thigh associated with compression of the lateral femoral cutaneous nerve, and that the majority of cases result from entrapment of the nerve as it passes under the inguinal ligament. The disorder is most frequently associated with conditions such as obesity, diabetes, and older age, and did not necessarily represent a serious back problem. The medical evidence indicates that the Veteran has had no more than mild, incomplete paralysis of the left anterior crural nerve throughout the pendency of his appeal. Thus, a preponderance of the evidence is against a rating higher than 10 percent for left thigh meralgia paresthetica 38 U.S.C.A. § 5107(a). III. Extraschedular Consideration Pursuant to 38 C.F.R. § 3.321(b)(1) (2015), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture 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." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence 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 a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the AOJ 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." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case the reported manifestations of the Veteran's right ankle disability have consisted of limitation of motion, accompanied by pain and occasional swelling. Reported manifestations of the left thigh disability have consisted of decreased sensation to vibration, pain, and light touch, intermittent pain, paresthesias and/or dysesthesias, and numbness. All reported symptoms are contemplated by the respective applied rating criteria. The rating schedule thus contemplates the disabilities herein rated; and extraschedular referral is not presently warranted. Given the need to fully evaluate the severity of the Veteran's service-connected low back disability, it would be premature for the Board to consider whether the Veteran may be entitled to an extraschedular rating based on the combined effects of his service-connected disabilities. VA is also required to consider whether an extraschedular rating is warranted for the combined effects of the service connected disabilities. Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). The combined effects extraschedular rating is meant to perform a gap filling function to provide compensation between the combined scheudlar rating and a total rating. Johnson v. McDonald, at 1365-6. In the instant case Veteran had a combined 50 percent rating from June 19, 2009 to April 30, 2013; and a has had a combined 60 percent rating since May 1, 2013. There has been no argument that the combined rating (aside from the individual ratings for the ankle, hip and back disabilities) is inadequate or fails to contemplate the combined disability. ORDER Entitlement to an increased rating higher than 10 percent for right ankle fracture with decrease range of motion and scar, for the period prior to May 1, 2013, is denied. Entitlement to an increased rating higher than 20 percent for right ankle fracture with decrease range of motion and scar, for the period since May 1, 2013, is denied. Entitlement to an increased rating higher than 10 percent for left thigh meralgia paresthetica is denied. REMAND During the Veteran's April 2008, April 2010, and May 2013 VA examinations, flare-ups of low back disability, and additional limitation of function due to factors such as stiffness and weakened movement have been identified. The VA examiners, however, have not provided opinions as to what additional limitation of function, to include limitation of motion, is present due to these factors. Cf. Deluca, supra. Additionally, the May 2013 VA examination report noted that the Veteran had guarding or muscle spasms of the thoracolumbar spine that resulted in abnormal gait and abnormal spinal contour. Prior medical evidence indicates that his scoliosis was of a congenital origin. Clarification is required. Cf. 38 U.S.C.A. § 4.2 (2015). Accordingly, this issue is REMANDED for the following action: 1. Schedule the Veteran for a new VA spine examination. The examiner should review the claims file, including this REMAND. All necessary studies and tests should be conducted. The examiner should: A) Report the Veteran's ranges of thoracolumbar spine motion in degrees. B) Determine the extent the thoracolumbar spine disability is manifested by weakened movement, stiffness, excess fatigability, incoordination, flare-ups, or pain. This determination should be made in terms of the degree of additional range-of-motion loss. These determinations are required by VA regulations as interpreted by courts. The examiner is advised that the Veteran is competent to report ranges of motion during flare-ups. To the extent possible, the examiner should opine as to the extent the thoracolumbar spine disability was manifested by weakened movement, stiffness, excess fatigability, incoordination, flare-ups, or pain at the time of the April 2008 and April 2010 VA examinations. C) Describe the presence of any favorable or unfavorable ankylosis of the thoracolumbar spine. D) Given evidence of scoliosis, note the presence of any muscle spasm, guarding, or localized tenderness, and that has resulted in abnormal gait or abnormal spinal contour since February 2008. Contrast such findings with prior evidence of scoliosis being of a congenital origin. E) Determine the severity of all neurological manifestations associated with the lumbar spine disability. Specific nerves affected should be identified, together with the degree of paralysis caused by the service-connected disability (e.g. mild, moderate, or severe), and the approximate date of onset. F) Report whether there has been any bed rest prescribed by a physician with treatment by a physician. If so, report the lengths of the prescribed The examiner must provide reasons for all opinions. 3. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs