Citation Nr: 18155439 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-37 251 DATE: December 4, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for a left ankle disability status post total arthroplasty is granted. Entitlement to an evaluation in excess of 10 percent for a left lower extremity external cutaneous nerve of the thigh to include as secondary to service connected disability is denied. Entitlement to an evaluation in excess of 30 percent for a left lower extremity popliteal nerve to include as secondary to service connected disability is denied. FINDINGS OF FACT 1. The Veteran’s left ankle disability was manifested by total prosthetic replacement with chronic residuals including severe pain and/or limitation of motion. 2. The Veteran’s left lower extremity external cutaneous nerve damage resulted in incomplete and severe paralysis. 3. The Veteran’s lower left extremity popliteal nerve damage is not more nearly manifested by foot drop and slight droop of the first phalanges of all toes, loss of extension of the proximal phalanges of the toes, loss of foot abduction, weakened adduction or anesthesia covering the entire dorsum of the foot and toes. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation for a left ankle disability, status post total arthroplasty, are met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5056, 5270-74. 2. The criteria for an evaluation in excess of 10 percent for lower extremity external cutaneous nerve damage have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124(a), Diagnostic Code 8529. 3. The criteria for an evaluation in excess of 30 percent for lower left extremity popliteal nerve damage have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.27, 4.124a, Diagnostic Code 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September1966 to March 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. Increased Rating Generally, disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veterans first nerve disability has been evaluated against the rating criteria for Diagnostic Code 8529 for external cutaneous nerve of the thigh. Per this Diagnostic Code, a noncompensable rating is warranted for mild or moderate paralysis, and a 10 percent rating is warranted for severe to complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8529. For the subject diagnostic code, a rating of 10 percent is the maximum allowable under the law The Veterans second nerve disability has been evaluated against the rating criteria for Diagnostic Code 8521 for external popliteal nerve. Per this Diagnostic Code, a 30 percent rating is warranted for severe incomplete paralysis, and a 40 percent rating is warranted for complete foot drop, and slight droop of the first phalanges of all toes, lost dorsal flexion of the proximal phalanges of the toes, loss of foot abduction, weakened adduction and anesthesia covering the entire dorsum of the foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8521. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to the varied level of the nerve lesion or partial regeneration. When the involvement is wholly sensory, the rating should be evaluated as mild, or at most, the moderate degree. See NOTE under “Diseases of the Peripheral Nerves.” 38 C.F.R. § 4.124a. Further, the words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than apply a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. Thus, the Board will evaluate the evidence of record against the rating criteria set forth above. In doing so, the Board notes that it has reviewed all of the evidence in the Veteran’s claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. 1. Entitlement to an evaluation in excess of 20 percent for a left ankle disability status post total arthroplasty The Veteran states that his left ankle disability has worsened in functionality, with increased pain and increased weakness. VA’s grant of service connection for the Veteran’s left ankle disability dates back to March 1968 following substantial damage to his joint as a result of a land mine in the Republic of Vietnam. Since that combat injury, he has undergone multiple surgeries to include joint fusion, arthrotomy with cheilectomy for debridement, surgical revisions and a total ankle replacement in July 2008, which was deemed to have failed. In January 2015, the hardware from the total ankle arthroplasty was removed and the Veteran underwent an ankle fusion procedure to address his symptoms. His multiple surgical interventions since 1997 to relieve the ankle pain have not had lasting effects. The discomfort was significant enough that the Veteran had discussed amputation on multiple occasions. Under Diagnostic Code 5056, a 20 percent rating is warranted for prosthetic replacement. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to 5270 or 5271. A 40 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness. A 100 percent rating is warranted for one year following implantation of the prosthesis. Following the Veteran’s January 2015 ankle surgery, he received a diagnosis of osteoarthritis of the ankle, ankylosis, with ankle nonunion and ankle fusion. Testing showed zero range of motion for the ankle due to fusion with atrophy. In April 2015 the Veteran filed his application for an increase rating relating to his ankle disability. At his VA ankle examination in June 2015, the Veteran reported swelling and pain that was getting worse, subsequent to his January 2015 surgery. He reported that he could not walk very much or do anything physical. For that examination the examiner noted that range of motion was compromised by pain with associated loss of flexibility and lost functionality under weight-bearing conditions. Dorsiflexion and plantar flexion were both measured at 0 degrees to 0 degrees, and muscle strength for the left ankle was measured at 0 out of a potential measurement of 5, in flexion and dorsiflexion. For residuals of the Veteran’s total ankle joint replacement, the examiner noted the ankle condition to be ankylosis with joint fusion, which was very painful and associated with nerve damage. In a February 2016 statement of record, the Veteran reported weakness and pain relating to his ankle in the range of 6 to 10 every day. Given the foregoing, the preponderance of the evidence supports a 40 percent evaluation - the maximum available under Diagnostic Code 5056. The balance of the evidence supports a finding that the Veteran has experienced chronic severe painful motion and weakness in his ankle after the arthroplasty. Accordingly, a rating of 40 percent is granted. The Board has considered alternative diagnostic codes for the period on appeal, but it finds that none would provide a higher rating. Specifically, the maximum rating available under Diagnostic Codes 5270-5274 (the codes under which ankle disabilities without prostheses are rated) is 40 percent - the same rating the Board has assigned. Moreover, an evaluation in excess of 40 percent is not warranted under DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) because a higher rating is not available under the diagnostic codes pertaining to range of motion. 2. Entitlement to an evaluation in excess of 10 percent for a left lower extremity external cutaneous nerve of the thigh to include as secondary to service connected disability. The Veteran states that his cutaneous left thigh nerve damage is worse than the 10 percent evaluation currently assigned that condition. A 10 percent rating is the highest evaluation available under DC 8529. See 38 C.F.R. § 4.124a, DC 8529. Accordingly, a higher rating is not available as a matter of law, and the claim must be denied. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). 3. Entitlement to an evaluation in excess of 30 percent for a left lower extremity popliteal nerve to include as secondary to service connected disability. The Veteran’s impairment of the external popliteal nerve has been assigned a 30 percent rating based on severe incomplete paralysis. The Board finds that a higher rating is not warranted. The July 2015 VA examination diagnosed peripheral neuropathy, neuralgia, and nerve damage in the left lower extremity secondary to left ankle fusion. On examination the Veteran reported severe symptoms of left lower extremity pain, paresthesia, and numbness with symptoms of electricity starting up left leg and Charlie horses in calves. On examination the muscle strength of the left knee was 4/5, with atrophy of the bilateral calves 35 cm on the left side and 39 cm on the right. Sensory examination was normal for the thigh/knee. Trophic changes were noted consisting of left leg hair loss, blue coloration of the left foot, and cold and smooth skin. The examiner found that the Veteran had severe incomplete paralysis of the popliteal nerve. The preponderance of the evidence weighs against a finding of complete paralysis of the popliteal nerve, as the July 2015 VA examination report shows that the Veteran’s left lower extremity neurological impairment does not produce the manifestations associated with complete paralysis, as described in DC 8521. Accordingly, the Veteran’s impairment of the popliteal nerve does not more nearly approximate the criteria for a 40 percent rating. See 38 C.F.R. § 4.124a. Because the preponderance of the evidence weighs against a higher rating, the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel