Citation Nr: 18146033 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-28 923 DATE: October 30, 2018 ORDER Entitlement to an initial evaluation in excess of 30 percent for a below-the-knee amputation (BKA) in left lower extremity is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s BKA in left lower extremity has been manifested by an amputation not improvable by prosthesis controlled by natural knee action. CONCLUSION OF LAW The criteria for an initial rating in excess of 40 percent for a BKA in left lower extremity have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes 5165, 5164 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. Legal Criteria: Increased rating under Diagnostic Codes 5165, 5164 A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2017). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, it will assign the lower rating. Id. Under Diagnostic Code 5165, a 40 percent rating is assigned for amputation at a lower level, permitting prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2017). A 60 percent rating is assigned for amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.71a, Diagnostic Code 5164 (2017). Ordinarily, the Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. 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, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Factual Background and Analysis The Veteran is service-connected for a BKA in the left lower extremity. Since August 29, 2012, the Veteran has been receiving the maximum schedular rating of 40 percent for the amputation of the left leg at a lower level that permits prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5165 (2017). The Board notes that the Veteran has also been awarded special monthly compensation throughout the rating period on account of anatomical loss of one foot. The Veteran contends that the current 40 percent rating does not accurately reflect the severity of his current condition as he has been experiencing pain and limitation in walking. However, as discussed below, the Board finds that a higher initial rating of 60 percent is not warranted since the Veteran’s prothesis has improved his amputation by natural knee action. See 38 C.F.R. § 4.71a, Diagnostic Codes 5165, 5164 (2017). The Board finds that there is competent and credible medical evidence to support a finding that the Veteran is able to ambulate with his prothesis. See January 2014 RMS Prosthetics Note (the Veteran has arrived at the appointment while walking with prosthesis); February 2015 Primary Care Note (the Veteran is walking with his prosthesis); October 2015 Prosthetics Amputation Clinic Consult Result (the Veteran ambulated into the clinic); January 2016 Dr. J.M.P. Progress Note (the Veteran is walking “reasonably well with his prosthesis”). Also, the Veteran’s private doctor J.M.P. reported that the Veteran’s prosthesis fits well and the Veteran is not experiencing any weakness. See May 2010 Letter from Dr. J.M.P. to Dr. S.G. Although there are different reports on the Veteran’s gait, there is no evidence to suggest that the Veteran was unable to walk with his prothesis anytime during the appeal period. See March 2014 Surgery History and Physical Examination (normal gait); September 2015 Nursing Emergency Department Triage Note (steady gait); December 2013 Dr. J.M.P. Progress Note (altered gait); January 2014 (irregular gait). Also, the Board notes that the Veteran is not experiencing any restriction of straight leg raising or any new motor deficit in his remaining left thigh. See December 2013 Dr. J.M.P. Progress Note. The Board acknowledges that the Veteran’s statements and several medical reports provide that he is experiencing pain and sensitivity in contact points and limitation in walking due to the pain and sensitivity. However, while the Board is sympathetic to the Veteran’s condition, an initial rating in excess of 40 percent for BKA in left lower extremity is only warranted when the prosthesis does not improve the BKA by natural knee action which is not the case here. See 38 C.F.R. § 4.71a, Diagnostic Code 5164 (2017). Based on above, the Board finds that an increased evaluation for an initial rating in excess of 40 percent for the Veteran’s BKA in left lower extremity is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5165, 5164 (2017). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Kim, Associate Counsel