Citation Nr: 1751910 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-32 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable disability rating for pulmonary fibrosis prior to May 21, 2012, and in excess of 30 percent prior to July 26, 2013. 2. Entitlement to an initial compensable disability rating for left ankle synovitis with degenerative joint disease prior to July 26, 2013, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in July 2012 by a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for pulmonary fibrosis and for left ankle disability and assigned 0 percent (noncompensable) disability ratings for each. A subsequent rating decision issued in September 2013 assigned a 30 percent rating for pulmonary fibrosis as of May 21, 2012 and 100 percent as of July 26, 2013, and assigned a 10 percent disability rating for left ankle synovitis with degenerative joint disease effective July 26, 2013. The Veteran has disputed all assigned ratings. FINDINGS OF FACT 1. Prior to May 21, 2012, the Veteran's pulmonary fibrosis was not shown to result in pulmonary function test (PFT) results for forced vital capacity (FVC) or diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO or DLCO(SB)) which was less than 80 percent of predicted values. 2. Between May 21, 2012 and July 26, 2013, the Veteran's pulmonary fibrosis was not shown to result in PFT results for FVC testing less than 65 percent of predicted values or DLCO testing less than 56 percent of predicted values. 3. The Veteran's left ankle synovitis with degenerative joint disease has resulted in limitation of motion from the date of claim with pain, swelling, and numbness, but without marked limitation of motion and/or ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for pulmonary fibrosis prior to May 21, 2012, and for a disability rating in excess of 30 percent between May 21, 2012 and July 26, 2013 were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6833 (2017). 2. The criteria for an initial disability rating of 10 percent, and no higher, for left ankle synovitis were met as of the date of claim. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59. 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claims in October 2008 and July 2013. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran has undergone VA examinations related to the disabilities on appeal. See VA examinations from May 2012, July 2013, and August 2017. As such, the Board will proceed with consideration of the Veteran's appeal. Assigning Disability Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings were assigned for both the Veteran's pulmonary fibrosis and his left ankle disability. After a review of the evidence, the Board finds that the staged ratings assigned for pulmonary fibrosis are appropriate. However, the disability picture for the left ankle disability is such that a single disability rating is warranted throughout the appeals period. Facts and Analysis Respiratory The Veteran is service-connected for pulmonary fibrosis secondary to asbestos exposure, which was rated as noncompensable (0 percent disabling) until May 2012, as 30 percent disabling until July 2013, and as 100 percent disabling thereafter. The Veteran seeks a higher disability rating for both periods prior to the award of 100 percent in July 2013. Pulmonary fibrosis is one of the diseases included in the General Rating Formula for Interstitial Lung Disease (Formula), listed under Diagnostic Codes 6825 through 6833; Diagnostic Code 6833 specifically applies to pulmonary fibrosis. The disability ratings are based primarily on the results of PFTs. The Formula provides that FVC of 75- to 80-percent predicted value, or; DLCO is 66- to 80-percent predicted, is rated 10 percent disabling. FVC of 65- to 74-percent predicted, or; DLCO of 56- to 65-percent predicted, is rated 30 percent disabling. FVC of 50- to 64-percent predicted, or; DLCO of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, is rated 60 percent disabling. FVC less than 50 percent of predicted value, or; DLCO less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale (right heart failure) or pulmonary hypertension, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. As noted above, the rating for interstitial lung disease is based on the results of PFTs. In order for a compensable or 10 percent disability rating to be assigned, either the FVC test or the DLCO test must be 80 percent of predicted values or below. The Veteran's VA treatment note from April 2008 showed PFTs with FVC of 119 percent of predicted values; DLCO test results were not listed. (See Medical Treatment Records, received 05/20/2008, p. 2.) As such, a compensable disability rating was not warranted at that time. The next PFTs are from the May 2012 VA examination when the FVC was 92 percent but the DLCO test showed 59 percent of predicted values. (See VA Exam, received 05/22/2012, p. 11-12.) Although the examiner stated that the FEV-1 test was the most accurate, and it showed 90 percent of predicted values, there was no rationale listed for discounting the DLCO test results, and these were the basis for the award of a 30 percent disability rating. At that time there was no evidence of reduced maximum exercise capacity, cor pulmonale, pulmonary hypertension, or a need for outpatient oxygen therapy which would warrant assignment of a higher disability rating. The next PFT results were those of the July 2013 VA examination, where the Veteran's DLCO test was 37.72 percent of predicted values. (See VA Exam, received 09/26/2013, p. 8.) The examiner noted that he was also using outpatient oxygen therapy at night, primarily for his obstructive sleep apnea. Both the DLCO test results and the use of outpatient oxygen therapy at night are individually sufficient to warrant a 100 percent disability rating, as was assigned. Based on the competent evidence as discussed, there is no factual basis for an award of a compensable disability rating for pulmonary fibrosis prior to May 2012 or for an award in excess of 30 percent prior to July 2013. 38 C.F.R. § 4.97. Left Ankle The Veteran is service-connected for left ankle synovitis with degenerative joint disease, which is rated as noncompensable (0 percent disabling) prior to July 2013 and as 10 percent disabling thereafter. The Veteran seeks a higher disability rating for both time periods on appeal. Disabilities of the ankle are rated based on limitation of motion, ankylosis, or on another deformity. 38 C.F.R. § 4.71a. Synovitis in particular falls in the list of acute, subacute, or chronic diseases, or Diagnostic Code 5020. The degenerative joint disease aspect of the Veteran's specific diagnosis refers to traumatic arthritis, which is normally rated under Diagnostic Code 5010, which in turn is rated under Diagnostic Code 5003 as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When there is some limitation of motion of the specific joint that is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each such major joint affected by limitation of motion is assigned. 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. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5270 provides ratings for ankylosis of the ankle. Here, ankylosis, or an approximate, of the ankle has not been shown and this diagnostic code does not apply. Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling. 38 C.F.R. § 4.71a. As noted above, the disability ratings assigned for ankle disabilities are based largely on limitation of motion. In this instance, specific range of motion findings are not required for a compensable rating; rather, moderate limitation of motion is entitled to a 10 percent disability rating. A 10 percent disability rating is also warranted where there is X-ray evidence of arthritis and noncompensable (here, less than moderate) limitation of motion. The evidence from an April 2007 treatment record showed a diagnosis of tenosynovitis of the left ankle and reports of persistent swelling and instability. (See Medical Treatment Records, received 05/20/2008, p. 9.) An MRI from October 2006 was reviewed which showed a bony defect in the calcaneus and tenosynovitis of the tendon sheaths of all flexor tendons. The provider noted that the Veteran had decreased range of motion, particularly eversion and dorsiflexion. Based on this evidence of bony changes associated with arthritis in April 2007 and limitation of motion as noted by the provider, the Board finds that a 10 percent disability rating is warranted as of the date of claim for Veteran's left ankle disability. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint under § 4.59). The Board notes that the lack of specific range of motion findings is not considered dispositive, in that the description of limitation of motion was verified by a medical provider and the specific rating criteria pertaining to ankle disabilities does not explicitly depend on specific range of motion findings. The next record of the Veteran's range of motion in his ankle was that of the May 2012 VA examination. (See VA Exam, received 05/22/2012, p. 14.) At that time, he had normal range of motion, including plantar flexion to 45 degrees and dorsiflexion to 20 degrees, with pain at the end point of the dorsiflexion. The Veteran asserted in his Notice of Disagreement in September 2012 that he would likely have pain on motion in his ankle, but the numbness related to his neuropathy meant he had no feeling at all. (See Notice of Disagreement, received 09/10/2012, p. 1.) He did experience limitation of motion, numbness, and swelling. Range of motion testing was next performed at the July 2013 VA examination. (See VA Exam, received 09/23/2013, p. 9-10.) The Veteran's plantar flexion was restricted to 35 degrees and dorsiflexion was restricted to 15 degrees, with no objective evidence of painful motion. At the August 2017 VA examination, his range of motion testing showed plantar flexion to 35 degree and dorsiflexion to 10 degrees. (See C&P Exam, received 08/03/2017, p. 3.) Flare-ups were not projected to result in any additional loss of function, only increased pain, and weight-bearing did not change the findings. The range of motion testing performed throughout the appeals period does not show that the Veteran has ever exhibited limitation of motion that is more than moderate in nature. The May 2012 VA examination results were normal, although it is possible that if the Veteran had felt pain he might have exhibited some limitation. The Board notes that Veteran's symptoms of limited motion, numbness, and swelling on his September 2012 notice of disagreement. However, these are part of his functional loss that is being compensated at a 10 percent disability rating. 38 C.F.R. § 4.40, 4.45. Furthermore, at subsequent evaluations, in 2013 and 2017 the Veteran's limitation of motion was no more than half of the normal ranges of motion, that is, at least 10 degrees of dorsiflexion and at least 20 degrees of plantar flexion. Such findings do not more nearly approximate a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. (CONTINUED ON THE NEXT PAGE) ORDER An initial compensable disability rating for pulmonary fibrosis prior to May 21, 2012, an in excess of 30 percent for the period of May 21, 2012 through July 26, 2013 is denied. An initial disability rating of 10 percent, but no higher, for left ankle synovitis with degenerative joint disease is granted, effective as of the date of claim. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs