Citation Nr: 18151197 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-37 526 DATE: November 16, 2018 ORDER From September 22, 2008 to February 28, 2016, entitlement to a disability rating of 20 percent, but not higher, for left ankle postoperative degenerative joint disease under Diagnostic Code (DC) 5271 is granted. From September 22, 2008 to February 28, 2016, for complex regional pain syndrome of the left ankle, entitlement to a 10 percent rating under DC 8521 for impairment of the external popliteal (common peroneal) nerve; a 10 percent rating under DC 8524 for impairment of the internal popliteal (tibial) nerve; and a 10 percent rating under DC 8525 for impairment of the posterior tibial nerve, but not higher, and in lieu of the 10 percent rating previously assigned under DC 8520 for the sciatic nerve, is granted. Entitlement to a disability rating in excess of 40 percent for status post left ankle fusion with loss of use of the left foot from March 1, 2016 forward is denied. FINDINGS OF FACT 1. From September 22, 2008 to February 28, 2016, the Veteran’s left ankle postoperative degenerative joint disease was manifested by marked limitation of motion. 2. From September 22, 2008 to February 28, 2016, the Veteran’s complex regional pain syndrome of the left ankle was manifested by mild, incomplete paralysis of the external popliteal (common peroneal) nerve, the internal popliteal (tibial) nerve, and the posterior tibial nerve. 3. The Veteran is precluded by the amputation rule from receiving a rating higher than 40 percent for his status post left ankle fusion with loss of use of the left foot. CONCLUSIONS OF LAW 1. From September 22, 2008 to February 28, 2016, the criteria for a 20 percent rating, but not higher, for left ankle postoperative degenerative joint disease have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017). 2. From September 22, 2008 to February 28, 2016, the criteria for a 10 percent rating, but not higher, for complex regional pain syndrome of the left ankle with impairment of the external popliteal (common peroneal) nerve have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2017). 3. From September 22, 2008 to February 28, 2016, the criteria for a 10 percent rating, but not higher, for complex regional pain syndrome of the left ankle with impairment of the internal popliteal (tibial) nerve have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8524 (2017). 4. From September 22, 2008 to February 28, 2016, the criteria for a 10 percent rating, but not higher, for complex regional pain syndrome of the left ankle with impairment of the posterior tibial nerve have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8525 (2017). 5. From March 1, 2016, forward, the criteria for a disability rating in excess of 40 percent for status post left ankle fusion with loss of use of the left foot have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5167 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2000 to February 2001 and from August 2005 to May 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2009 and August 2009 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2009 and August 2009, the RO denied entitlement to a disability rating in excess of 10 percent for the Veteran’s service-connected degenerative joint disease of the left ankle under DC 5271. In August 2009, the RO awarded a separate 10 percent rating under DC 8520 for complex regional pain syndrome of the left ankle, effective January 8, 2009. In an April 2016 rating decision, following the Veteran’s left ankle fusion surgery, the RO recharacterized his left ankle disorder as status post left ankle fusion with loss of use of the foot and assigned a 40 percent rating under DC 5167, effective from March 1, 2016, forward. The ratings previously assigned under DCs 5271 and 8520 were discontinued effective that date. During the pendency of the appeal, the Veteran has been awarded temporary total ratings due to left ankle surgery, to include from May 20, 2010 to November 30, 2010; August 20, 2012 to December 31, 2012; December 27, 2013 to March 31, 2014; and November 19, 2015 to February 28, 2016. Additional relevant evidence, including a January 2017 VA examination report, has been associated with the Veteran’s file after the issuance of the most recent supplemental statement of the case in April 2016. However, as the RO considered this evidence in a March 2017 rating decision, and as a result of the Board’s decision herein the Veteran is in receipt of the maximum rating available for his service-connected left lower leg disorder, there is no prejudice to the Veteran by the Board’s consideration of this evidence. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Where entitlement to compensation has already 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). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower ratings for segments of time during the period on appeal in accordance with such variations, if such is supported by the evidence of record. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that staged ratings may be warranted in initial rating cases). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2015). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to an increased rating in excess of 10 percent prior to March 1, 2016 for left ankle postoperative degenerative joint disease. On September 22, 2008, the Veteran submitted a claim for an increased rating for his service-connected degenerative joint disease of the left ankle. As noted above, prior to March 1, 2016, his left ankle postoperative degenerative joint disease was rated as10 percent disabling under DC 5271. Under Diagnostic Code (DC) 5271 for rating limited motion of the ankle, moderate limitation of motion of the ankle warrants a 10 percent rating and marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5271. Standard range of ankle dorsiflexion is from zero to 20 degrees, and plantar flexion from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. The terms slight, moderate, and marked are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just, and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6. For the appellate period prior to March 1, 2016, the Board finds that the Veteran’s left ankle degenerative joint disease resulted in marked limitation of motion. For example, on VA examinations in December 2008 and July 2009 he had dorsiflexion of the left ankle of less than 2 degrees and to 2 degrees, respectively. Further, dorsiflexion of the left ankle was only to 15 degrees on VA examination in May 2015 and the examiner noted that flare ups would limit functional ability due to pain, fatigue, weakness, and lack of endurance. Thus, for the appellate period prior to March 1, 2016, the Board finds that a 20 percent rating is warranted for left ankle degenerative joint disease under DC 5271. The highest available rating under DC 5271 is 20 percent, which the Veteran has now been assigned for the entire period currently on appeal. Because 20 percent is the maximum rating for limitation of motion of the ankle, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). A higher rating is available under DC 5270, but only if the Veteran’s ankle is ankylosed. DC 5270 instructs that a 30 percent rating be assigned for ankylosis of the ankle in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees. A 40 percent rating is assigned for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 38 C.F.R. § 4.71a, DC 5270. At the recommendation of Dr. Chou in November 2015, the Veteran underwent surgery for left ankle fusion. VA examination in February 2016 revealed 0 degrees of dorsiflexion and plantar flexion in the left ankle, described as ankylosis in good weight-bearing position. While ankylosis of the Veteran’s left ankle was documented as of November 2015 due to the fusion surgery, the Board notes that he was already in receipt of a 100 percent temporary total rating under 38 C.F.R. § 4.30 from November 2015 through February 2016, followed by the assignment of a 40 percent rating under DC 5167 for loss of use of the foot as of March 1, 2016. As ankylosis of the ankle was not shown prior to the November 2015 fusion surgery, a higher rating under DC 5270 is not warranted. In sum, for the appellate period prior to March 1, 2016, the evidence supports the assignment of a 20 percent rating under DC 5271 for left ankle postoperative degenerative joint disease, which is the maximum rating available under this code. However, the preponderance of the evidence is against entitlement to a disability rating in excess of 20 percent for left ankle postoperative degenerative joint disease under DC 5270. 2. Entitlement to an initial rating in excess of 10 percent, prior to March 1, 2016, for complex regional pain syndrome. Prior to March 1, 2016, the Veteran was assigned a 10 percent rating for his complex regional pain syndrome (CRPS) under DC 8520. Diagnostic Code 8520 provides ratings specifically for diseases of the sciatic nerve. However, examination of the Veteran’s left lower extremity has revealed no involvement of his sciatic nerve. See VA examination reports dated May 19, 2015 and February 16, 2016 showing that the Veteran’s sciatic nerve was normal. Rather, the Veteran’s complex regional pain syndrome has been shown to involve the external popliteal (common peroneal), anterior tibial (deep peroneal), internal popliteal (tibial) and posterior tibial nerves, as discussed in more detail below. As such, the Board finds that application of DCs 8521, 8523, 8524 and 8525 (rather than DC 8520) is more appropriate in this case. Pursuant to Diagnostic Code 8521, a 10 percent disability is warranted for mild incomplete paralysis of the external popliteal nerve; 20 percent disability rating is warranted for moderate incomplete paralysis of the external popliteal nerve; a 30 percent disability rating is warranted for severe incomplete paralysis of the external popliteal nerve; and a 40 percent disability rating is warranted for complete paralysis of the external popliteal nerve, manifested by symptoms of foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened abduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under DC 8523, a noncompensable rating is warranted for mild incomplete paralysis of the anterior tibial nerve (deep peroneal), a 10 percent rating is warranted for moderate incomplete paralysis, a 20 percent rating is warranted for severe incomplete paralysis, and a maximum 30 percent rating is warranted for complete paralysis with dorsal flexion of the foot lost. 38 C.F.R. § 4.124a, Diagnostic Code 8523. Under DC 8524, which applies to paralysis of the internal popliteal nerve (tibial), a rating of 10 percent is assigned for mild incomplete paralysis. A rating of 20 percent is assigned for moderate incomplete paralysis. A rating of 30 percent is assigned for severe incomplete paralysis. A rating of 40 percent is assigned for complete paralysis: plantar flexion lost, frank adduction of the foot impossible; flexion and separation of the toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost. 38 C.F.R. § 4.124a, Diagnostic Code 8524. Under DC 8525, which applies to paralysis of the posterior tibial nerve, the minimum 10 percent rating is warranted for incomplete mild paralysis. A 10 percent rating is also warranted for moderate incomplete paralysis. A 20 percent rating is warranted for severe incomplete paralysis. The maximum 30 percent rating is warranted for complete paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes cannot be flexed; adduction is weakened; plantar flexion is impaired. 38 C.F.R. § 4.124a, DC 8525. As noted above, the Veteran submitted an increased rating claim for his left ankle disorder on September 22, 2008. On VA examination in December 2008, the examiner noted that the Veteran had been recently seen at the Stanford Medical Clinic and told that he has regional pain syndrome, also known as reflex sympathetic dystrophy. The Veteran reported constant pain in his ankle, for which he was being treated with nerve blocks. In a statement received in January 2009, Joshua Pal, M.D. (of the Stanford Medical Clinic) stated that the Veteran was under his care for chronic regional pain syndrome (CRPS) - a very painful condition that reduces an individual's tolerance to walking or running when present in the lower extremity as was for the Veteran. On VA examination in July 2009, the Veteran complained of burning pain, tingling, and increased sensitivity. He was limited in his ability to walk for prolonged periods of time, and used one to two sick days each month. On examination, there was patchy decreased sensation to monofilament testing across the dorsal aspect of the left foot not following any particular dermatomal pattern. The Veteran’s skin was warm but sensitive to touch, with the Veteran pulling away when the examiner attempted to palpate. The examiner determined that the Veteran’s diagnosed CRPS was caused by his service-connected left ankle condition. In August 2012, the Veteran described his ankle pain as 7/10 in severity. He underwent neurolysis of the saphenous nerve and burying in the soleus muscle. On follow-up evaluations after the surgery, his pain level was 3-4/10 and 2-3/10. The nerve pain on the medial aspect, which was treated operatively, had significantly improved but now he had pain anterolaterally. In December 2012, it was noted that the Veteran had sensitivity about the superficial peroneal nerve distribution. He was given a block which relieved his pain. Later that month, he underwent surgery for left ankle superficial peroneal neuroma burial, which resolved his pain. In December 2013, it was noted that the Veteran had developed persistent anteromedial pain and symptoms of impingement. He again underwent surgery. In September 2014, the Veteran stated that his CRPS made it difficult for him to walk after 30 to 60 feet, and that when his nerve pain was flared up it was difficult to even stand. He stated that he continued to experience burning, tingling and constant aching and had partial loss of feeling in his lower leg and foot. The Veteran was given another VA examination in May 2015, at which time he reported a constant aching feeling in the ankle, punctuated by burning pain. His pain could last the whole day. He stated that about once a week he had a hard time in the morning walking from the bedroom to the bathroom, and that cold weather and long walking/standing made it worse. On certain days he could only walk the minimum from the parking lot to his office and from one room to another in his house. On VA peripheral nerves examination, he reported a constant, mild ache in the left ankle and lower leg that may be excruciating (i.e., severe) at times. During flares, it was difficult to stand. He also reported moderate numbness and paresthesias. Muscle strength was 5/5 at the knees and ankles, and reflexes and sensation were normal. The examiner found that there was mild, incomplete paralysis of the external popliteal (common peroneal) and anterior tibial (deep peroneal) nerves. The examiner stated that the Veteran's case of complex regional pain syndrome is a very difficult condition and that he had failed multiple treatment strategies thus far. She noted that the Veteran had been advised that total amputation of the left foot/ankle may be a surgical option; however, a second opinion did not believe that amputation was necessary at that point. In a February 2016 VA examination, the Veteran reported symptoms of exquisite sensitivity and pain even on light palpation. He stated that the pain can be local or runs up his spinal cord. There is "through the roof pain," "intense pain, I can't handle it," and even a sensation of "ripping shin off, that feels like tearing." He had constant moderate pain and severe intermittent pain. He also noted feelings of moderate paresthesias and numbness. Reflexes at the left ankle were 0/4 and sensation of the foot and toes was decreased. The examiner found that there was mild, incomplete paralysis of the external popliteal (common peroneal), anterior tibial (deep peroneal), internal popliteal (tibial) and posterior tibial nerves. In sum, the Board finds that, effective from September 22, 2008 (the date of the Veteran’s claim for an increased rating) to February 28, 2016, the Veteran has been shown to have mild, incomplete paralysis of the external popliteal (common peroneal), anterior tibial (deep peroneal), internal popliteal (tibial) and posterior tibial nerves. There was involvement of the saphenous and superficial peroneal nerve in August 2012 and December 2012, respectively, but this resolved following surgery. As such, the Board finds that separate 10 percent ratings are warranted under DCs 8521, 8524, and 8525. A separate 10 percent rating under DC 8523 is not in order, as the Veteran’s anterior tibial nerve (deep peroneal) is not manifested by moderate, incomplete paralysis. Mild incomplete paralysis of the anterior tibial nerve (deep peroneal) warrants only a noncompensable rating. Further, in the absence of findings of moderate, incomplete paralysis of the external popliteal (common peroneal), internal popliteal (tibial) and/or posterior tibial nerves, a rating in excess of 10 percent is not warranted for any of these disabilities under DCs 8521, 8524, and/or 8525. In sum, given the Veteran’s statements regarding the severity of his nerve pain and the examination findings of mild, incomplete paralysis, as well as calf atrophy, the Board finds that separate 10 percent ratings are warranted under DCs 8521, 8524, and 8525, but not higher, for the Veteran’s complex regional pain syndrome. Acknowledging both the Veteran’s degenerative joint disease of the ankle and his complex regional pain syndrome, the Board has also considered whether a higher rating under DC 5167 for loss of use of the left foot is warranted prior to March 1, 2016. With actual loss of use of the foot, a 40 percent rating is assigned under Diagnostic Code 5167. 38 C.F.R. § 4.71a, DC 5167. However, the combined rating for the Veteran’s degenerative joint disease of the left ankle (20%), and impairment of the external popliteal (common peroneal) (10%), internal popliteal (tibial) (10%) and posterior tibial (10%) nerves is 40 percent. See 38 C.F.R. § 4.25. Thus, consideration of DC 5167 does not afford the Veteran any greater benefit. Further, as discussed in more detail below, application of the amputation rule set forth at 38 C.F.R. § 4.68 precludes the assignment of a rating in excess of 40 percent in this case. 3. Entitlement to a disability rating in excess of 40 percent for status post left ankle fusion with loss of use of the left foot, from March 1, 2016, forward. From March 1, 2016, forward, the Veteran is in receipt of a 40 percent rating under DC 5167 for loss of use of the left foot – the maximum rating available under that code. 38 C.F.R. § 4.71a, DC 5167. As a matter of law, the Veteran cannot receive a combined disability rating in excess of 40 percent due to the “amputation rule”. The amputation rule note provides, in relevant part, that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were the amputation to be performed. See 38 C.F.R. § 4.68. As amputation of a lower level of the leg permitting prosthesis warrants a 40 percent evaluation, the Veteran cannot be compensated in excess of a 40 percent rating for his left lower leg disability. See 38 C.F.R. § 4.68; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit). As such, entitlement to a disability rating in excess of 40 percent for status post left ankle fusion with loss of use of the left foot, from March 1, 2016, forward, is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel