Citation Nr: 1808058	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  13-32 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an evaluation in excess of 20 percent for residuals of fracture of left talus, status post neuroma incision.

2. Propriety of reduction of complex regional pain syndrome with left foot drop, from 20 to 10 percent disabling, effective July 18, 2011.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1984 to December 1986.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Veteran testified before the undersigned Veterans Law Judge at a May 2017 videoconference hearing.  A copy of the transcript is associated with the file.

The issue of the propriety of a reduction of complex regional pain syndrome with left foot drop, from 20 to 10 percent disabling, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The Veteran's residuals of fracture of left talus, status post neuroma incision are manifested by no more than marked amount of limitation of motion throughout the entire period.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for residuals of fracture of left talus, status post neuroma incision have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Increased Evaluation Residuals of Fracture of Left Talus

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4.  The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury.  38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

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 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  As explained below, the Board has determined that a uniform evaluation of 20 percent is warranted for the entire period on appeal.

When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4. 40, 4.45, 4.59. However, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, [or] endurance."  Id. (quoting 38 C.F.R. § 4.40). 

The Veteran's service-connected residuals of fracture of left talus, status post neuroma incision are evaluated as 20 percent disabling under Diagnostic Code 5271.  38 C.F.R. § 4.71(a).  The Veteran filed his increased rating claim on December 1, 2010.  During this period, the Veteran has at times received a temporary 100 percent evaluation under the provisions of 38 C.F.R. § 4.30.  The Board will not address these periods and will leave them undisturbed.

Under Diagnostic Code 5271, a 10 percent rating contemplates moderate limitation of motion.  In order to warrant a higher, 20 percent rating, marked limitation of motion is required.  Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion.  38 C.F.R. § 4.71a, Plate II.

The Board notes that a 20 percent evaluation is the maximum available under Diagnostic Code 5271.  As no higher schedular rating is available, an increased schedular rating is not warranted.  AB v. Brown, 6 Vet. App. 35, 38 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 

Based on the lay and medical evidence of record, the Board finds that an evaluation in excess of 20 percent for the Veteran's residuals of fracture of left talus is not warranted.  During this period the Veteran has stated that his residuals of fracture of left talus have been manifested by pain and limitation of motion.  The Veteran is competent to testify to such lay observable symptomatology.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, such lay evidence, even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation.  

As noted above, a 20 percent rating is the maximum rating assignable under Diagnostic Code 5271.  The Board has also considered whether higher evaluations are available under other provisions of the code.  However, the Veteran's residuals of fracture of left talus have not shown to involve any other factor that would warrant evaluation of the disability under other provisions of the rating schedule. 

Specifically, the Veteran is not shown to have ankylosis of the left ankle to warrant an evaluation under Diagnostic Code 5270.  See 38 C.F.R. § 4.71a.  VA examinations in March 2011 and March 2014, as well as treatment records and the Veteran's own testimony, are absent any evidence of ankylosis.  In addition, there is also no evidence of ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy to warrant ratings under Diagnostic Codes 5270-5274.  Id.  

Diagnostic Code 5273 pertains to malunion of os calcis or astragalus, which has not been shown at any time during the claim.  Finally, to the extent that Diagnostic Code 5274 may be applicable, the maximum evaluation under that code is 20 percent.  As a result, it would not lead to an increased evaluation even if there was evidence that the Veteran's left talus bone has been removed.  Thus, the Veteran is not entitled to increased or additional ratings under Diagnostic Codes 5270, 5272, 5273, or 5274.

In reaching this finding the Board acknowledges the Court's finding in Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016).  However, as the Veteran is currently in receipt of the maximum evaluation for limited motion under the applicable diagnostic code, a new examination would not benefit the Veteran.  

In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination.  See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59.  Here, VA examinations do not show that a higher rating is warranted on this basis.

In addition, the evidence of record does not show that the Veteran's symptoms more closely approximate amputation.  38 C.F.R. §3.350.

Lastly, the Board has determined that this matter is not intertwined with the matter remanded below.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  To the extent that the medical evidence and the Veteran's testimony suggests a worsening of the Veteran's regional pain syndrome with left foot drop, as explained above, the record is devoid of any evidence of ankylosis of the left ankle or any other relevant symptoms that could possibly warrant an increased evaluation for this specific disorder.  As a result, the Board has determined that adjudication of this matter is appropriate.

All potentially applicable Diagnostic Codes have been considered.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  The preponderance of the evidence is against an increased evaluation in excess of 20 percent for the Veteran's service-connected residuals of fracture of left talus.  As such, the benefit-of-the-doubt doctrine is inapplicable.  38 C.F.R. § 4.3.  For these reasons, the claim is denied.


ORDER

Entitlement to an evaluation in excess of 20 percent for residuals of fracture of left talus, status post neuroma incision is denied.


REMAND

Here the Board recognizes that the Veteran's evaluation for complex regional pain syndrome with left foot drop was reduced from 20 percent to 10 percent, effective July 18, 2011, by the July 2012 rating decision on appeal.  The evaluation was reduced as a July 2011 VA examiner clarified that the Veteran's complex regional pain syndrome with left foot drop was related to incomplete paralysis of the left deep peroneal nerve (Diagnostic Code 8723), as opposed to the common peroneal nerve (Diagnostic Code 8521).  It was the determination that another Diagnostic Code was applicable, as opposed to a decrease in the severity of symptoms, that led to the reduction.  

At the Veteran's May 2017 Board hearing, he specifically testified that the symptoms associated with his complex regional pain syndrome with left foot drop had increased in severity.  Specifically, the Veteran testified that he experienced increased weakness, burning, locking up, and sensations of falling.  The record also contains an October 2017 note from a VA physician reporting that the Veteran underwent removal of the associated non-functional spinal cord stimulator lead and the replacement of an existing internal pulse generator, related to his complex regional pain syndrome with left foot drop.  

In light of this medical procedure and the Veteran's testimony with respect to a potential increase in the severity of neurological symptoms of incomplete paralysis of the left deep peroneal nerve, remand for a new VA examination is warranted.

Accordingly, the case is REMANDED for the following action:

1. Obtain any updated VA treatment records.

2. Contact the Veteran requesting any relevant private treatment records, or alternatively, authorization to obtain any such records.

3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected complex regional pain syndrome with left foot drop.

The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request.   The examiner must correctly identify the nerve or nerves and the examination report must correspond to the rating criteria

A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles.

4. After completing all indicated development, the AOJ should readjudicate the claim in light of all the evidence of record.  If any benefit sought on appeal remains denied, the AOJ should furnish to the Veteran a fully responsive Supplemental Statement of the Case.

The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs