Citation Nr: 1803460 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-12 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for decreased sensation of the superficial peroneal nerve. 2. Entitlement to a rating in excess of 20 percent for limitation of motion, right ankle with scar. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: John V. Tucker, Attorney at Law ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction is now with the RO in St. Petersburg, Florida. In December 2015, the Board remanded the appeal for additional development. The claim has been returned to the Board for further appellate review. The Board notes that in November 2017, the Veteran filed a substantive appeal as to the issue of whether the reduction of the disability rating for degenerative joint disease (DJD) lumbar spine, from 20 percent to 10 percent effective August 1, 2015, was proper. This issue however has not yet been certified to the Board by the RO. Because the RO appears to be continuing to work on this issue, the Board will not assume jurisdiction over the issue at this time. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the appeal period, the Veteran's decreased sensation of the superficial peroneal nerve has been manifested by moderate incomplete paralysis of the musculocutaneous nerve; it has not been manifested by impairment that more nearly approximates severe incomplete paralysis. 2. During the appeal period, the Veteran's right ankle disability was manifested by marked limitation of motion, and without objective evidence of ankylosis, subastragalar or tarsal joint, malunion of calcaneus (os calcis) or talus (astragalus), or had a talectomy (astragalectomy). CONCLUSIONS OF LAW 1. The criteria for an increased rating for decreased sensation of the superficial peroneal nerve have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8522 (2017). 2. The criteria for an increased rating for limitation of motion, right ankle with scar have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by evaluating the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, "staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Decreased Sensation of the Superficial Peroneal Nerve The Veteran is currently assigned a 10 percent disability rating under Diagnostic Code (DC) 8522, paralysis of musculocutaneous nerve (superficial peroneal). Under DC 8522, a noncompensable rating is warranted for mild, incomplete paralysis of the musculocutaneous nerve. A 10 percent rating is warranted for moderate, incomplete paralysis. A 20 percent rating is warranted for severe, incomplete paralysis. A 30 percent rating is warranted for complete paralysis; eversion of the foot weakened. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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 . The record shows that the Veteran suffered compartment syndrome of the right, lateral leg after a prolonged march during active service; then, he developed a peroneal nerve condition, post operatively. He was granted service connection for decreased sensation of the superficial peroneal nerve in an October 2001 rating decision, and a 10 percent rating was assigned. The Veteran submitted a letter in February 2005 to the RO requesting reevaluation of his claim. The Veteran was afforded a VA examination in April 2005. The examiner noted no change since his last examination in April 2001. At that time, he had decreased sensation in the lower leg with instability and some loss of balance of the right ankle. He also had an area of desensitization in the right leg from the mid tibial area down to the top of the foot, compatible with lateral sural nerve damage, as well as superior peroneal nerve damage. In a February 2007 VA examination, the Veteran reported that he had the same problems with pain, balance, weakness and stiffness in the right ankle and muscles. He indicated that these symptoms had not worsened. The examiner noted no increase in numbness or weakness in his right leg. Finally, the examiner diagnosed him with unchanged decreased sensation in the right peroneal nerve distribution. The Veteran was afforded another VA examination in November 2008, in which he reported nerve symptoms of weakness, numbness, pain, and impaired coordination that included difficulty sensing foot placement when walking. However, the examiner noted the Veteran was still able to drive without difficulty. In a June 2009 VA examination, the Veteran reported that the numbness had worsened, and the examiner noted symptoms of numbness and pain. A sensory function report of the right, lower extremity indicated decreased vibration in his great toe, little toe and ankle; and decreased pain and light touch extended from the inferior to patella, to the top of his right foot (40 cm total), with the anterior and medial aspect of the right calf 14 cm wide and the foot 8 cm wide over the dorsum. In an August 2012 VA examination, the examiner indicated mild right, lower extremity paresthesias and/or dysesthesias; moderate right lower extremity numbness; decreased sensory of the right lower leg and ankle and foot and toes. The examiner noted a mildly altered gait due to right ankle stiffness. The examiner also marked "incomplete paralysis" of the lower right musculocutaneous (superficial peroneal) nerve and of the anterior tibial (deep peroneal) nerve; but she did not indicate whether the severity considered was mild, moderate or severe. The Veteran was most recently afforded another VA examination in April 2017. The examiner indicated that the Veteran did not have a peripheral nerve condition or peripheral neuropathy, and that he did not have any symptoms attributable to any peripheral nerve conditions. He noted a normal sensory examination, but that the Veteran reported decreased temperature sensation (cold) on the right foot. The examiner found negative microfilament testing, adequate vibratory response at 128 Hz, and adequate proprioception. The examiner indicated that all nerves were normal, and that there were no functional limitations. The Board notes that the Veteran's VA examiners have found his decreased sensation of the superficial peroneal nerve to be either mild or moderate. Upon a review of the entire record, it is determined that a 10 percent rating is warranted for his disability pursuant to DC 8522. There is no medical evidence in the record characterizing his disability as more than moderate. Although the April 2017 examiner concluded that there is no current diagnosis of a peripheral nerve condition, but did note symptoms associated with muscle injury, the Board notes that the Veteran has already been compensated for his service-connected foot and leg muscle disability under DC 5311. Accordingly, a disability rating in excess of 10 percent is not warranted for his decreased sensation of the superficial peroneal nerve under DC 8522. Right Ankle Limited Motion The Veteran is currently assigned a 20 percent disability rating under Diagnostic Code (DC) 5271, for limited motion of the right ankle. Under DC 5271, a 10 percent rating is warranted when limitation of motion is moderate. See 38 C.F.R. § 4.71a, DC 5271. The maximum rating of 20 percent disabling is available where the limitation of motion in the ankle is marked. Id. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Ratings are also available for ankylosis of the ankle (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of os calcis or astragalus (DC 5273), and Astragalectomy (DC 5274). The Veteran suffered compartment syndrome of the right, lateral leg after a prolonged march during active service and underwent a fasciotomy and tendon transfer. Post operatively, he developed limited motion of the right ankle. The Veteran was afforded a VA examination in April 2001. He had plantar flexion limited to 30 degrees, dorsiflexion to 5 degrees, inversion of 5 degrees and eversion of 5 degrees in the heel, and inversion of 30 degrees and eversion of 10 degrees in the forefoot; and his toes revealed full dorsiflexion. In an April 2005 VA examination, the Veteran had plantar flexion limited to 30 degrees, dorsiflexion to 5 degrees, hind foot inversion and eversion of 5 degrees, inversion of the forefoot to 20 degrees, and eversion of the forefoot to 10 degrees. His toes showed full dorsiflexion. The Veteran was afforded another VA examination in June 2005. His active plantar flexion was limited to 30 degrees, and passive range of motion to 45 degrees. After repetitive use, he had loss of motion limited to 25 degrees. In a February 2007 VA examination, the Veteran's right ankle plantar flexion was limited to 25 degrees on active motion and 40 degrees on passive motion, with pain at 25 degrees. After repetitive use, motion was limited to 20 degrees. He had dorsiflexion on active and passive motion to 0 degrees, with pain. In a November 2008 VA examination, the Veteran had active motion dorsiflexion to 15 degrees; active motion plantar flexion to 30 degrees; and passive motion plantar flexion to 45 degrees. The Veteran's range of motion in June 2009 did not change since the November 2008 VA examination. The Veteran was afforded another VA examination in August 2012. His right ankle plantar flexion was limited to 10 degrees, and dorsiflexion to 5 degrees. The examiner indicated no objective evidence of painful motion. After repetitive use, his right ankle plantar flexion ended at 10 degrees and dorsiflexion at 5 degrees; and he had less movement than normal, weakened movement, and disturbance of locomotion. The examiner noted no ankylosis of the ankle, subtalar or tarsal joint. In an April 2017 VA examination, the Veteran did not report flare-ups of the ankle, but he did report functional loss or functional impairment of stiffness with limited range of motion and mobility. The Veteran had normal range of motion in his right ankle; dorsiflexion to 20 degrees; plantar flexion to 45 degrees; no pain was noted on examination; there was no evidence of pain with weight bearing; no objective evidence of localized tenderness or pain on palpation of the joint; and no additional loss of function or range of motion after repetitive use. The Veteran's ankle is already at 20 percent, which is the maximum rating under the limitation of motion codes for the ankle. In order to obtain a higher rating, ankylosis must be shown. VA treatment records do not indicate any assessment of ankylosis at any time during the entire appeal period. Thus, the Veteran, by definition, does not suffer from ankylosis. See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."). Since the Veteran can move his ankle, no additional range of motion testing during flares or after repetitive use would avail the Veteran. As such, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet.App. 202 (1995) is not required. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Thus, an increased evaluation is not warranted. The Board has considered whether a higher or separate disability rating is available under any other potentially applicable provision of the rating schedule. However, neither a higher nor separate evaluation is warranted based on any other provision of the rating schedule as there is no evidence of malunion of the os calcis or astragalus. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, and 5274. In this regard, the April 2017 VA examiner noted that the Veteran did not have ankylosis, and had never had, shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or had a talectomy (astragalectomy). The remaining VA examination reports and treatment records do not contradict this finding. Thus, the Diagnostic Codes 5272, 5273, and 5274 respectively, are not applicable. The Board adds that the Veteran does not contend, nor does the evidence show that the Veteran's ankle scar is painful or tender, or is of the size that would warrant the assignment of a separate compensable rating. In reaching all of these conclusions, the Board has carefully reviewed and considered the Veteran's statements regarding the severity of his right ankle disability. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal is more severe than the previously assigned disability ratings reflected. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, with respect to the requirements for higher ratings, the competent medical evidence offering detailed, specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. As such, a rating in excess of 20 percent is not warranted and the appeal must be denied. ORDER A rating in excess of 10 percent for decreased sensation of the superficial peroneal nerve is denied. A rating in excess of 20 percent for limitation of motion, right ankle with scar, is denied. REMAND The Veteran claims that his service-connected disabilities prevent him from security or following gainful employment. The evidence reveals that he served in the United States Marine Corps from January 1990 to September 1991; he subsequently worked as an airport attendant, refueling aircrafts; he worked as a security guard for a casino; he then opened his own transportation company that ran daily trips to and from Las Vegas (he supervised the company and helped drive between cities); he pursued a Bachelor's degree in business; and he worked as a sales clerk. He has submitted statements in support of his claim noting his last date of employment was in February 2007. At a November 2016 Vocational Assessment, the Veteran reported that he had not worked since closing his transportation business in 2008. However, the record contains evidence indicating that the Veteran participated in VA's Vocational Rehabilitation Program during the appeal period under review, and that at one point during the appeal period in August 2015, he was found to be "feasible for employment" upon accepting a six-month job as a diving instructor. See August 4, 2015 email correspondence from a VA Vocational Rehabilitation Counselor. A December 6, 2017 VA Mental Health C&P Examination Consult indicates while the Veteran is currently unemployed, he last worked in 2009 as a dive master teaching SCUBA. Based on this note, it is unclear from the record whether the Veteran was in fact gainfully employed at times during this period under review, or whether any such employment was simply marginal. On remand, the Veteran should be requested to submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) outlining and describing all periods of employment since 2007, if any. The Veteran's VA Vocational Rehabilitation file folder should also be requested and associated with the record, as it may contain evidence pertinent to this appeal. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a copy of VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and request that he complete the form and return it to VA, outlining and describing all periods of employment, if any, since 2007. 2. Obtain and associate with the file the Veteran's VA Vocational Rehabilitation folder. 3. Readjudicate the appeal. If the benefit sought is denied, the Veteran and his attorney should be issued a Supplemental Statement of the Case. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (West 2012). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs