Citation Nr: 20005736 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 11-18 746 DATE: January 23, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for residuals of right distal fibula fracture is denied. Entitlement to special monthly compensation (SMC) for loss of use of the of the right foot under 38 U.S.C. § 1114(k) is granted. FINDINGS OF FACT 1. The Veteran’s residuals of right distal fibula fracture disability shows marked limitation of motion of the ankle; it has not exhibited ankylosis or malunion of os calcic or astragalus; the Veteran has not had an astragalectomy during the period on appeal. 2. The Veteran’s service-connected ankle disability has resulted in the loss of use of the right foot. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for residuals of right distal fibula fracture have not all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5270-5274. 2. The criteria for the award of SMC for loss of use, right foot, have all been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350(a)(2); 38 C.F.R. § 4.63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1971 to June 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the February 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a disability rating of 20 percent for residuals of right distal fibula fracture. This case was last before the Board in May 2018, at which time it was remanded to the RO to obtain and associate with the claims file VA treatment records dated since April 12, 2012. The Board directed the RO to ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his right ankle disability; and after securing any necessary releases, to request any relevant records identified. The Board also directed the RO to afford the Veteran a medical examination with opinion, and readjudication. Those actions completed, the case has been returned to the Board for further appellate review. Entitlement to a disability rating in excess of 20 percent for residuals of right distal fibula fracture is denied. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where the question of functional loss due to pain upon motion is raised, the provisions of 38 C.F.R. § § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Under DC 5271, a 20 percent rating is assigned for marked limitation of motion. Normal range of motion for the ankle is dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. 38 C.F.R. § § 4.71, Plate II. Turning to the evidence of record, the February 2009 VA treatment records reflect that the Veteran underwent testing for plantar and dorsiflexion of the right ankle. The examiner noted that there was some limitation, possibly due to pain. The Veteran was afforded a VA examination in January 2010. The Veteran’s symptoms included pain, stiffness, and swelling. The Veteran reported that he has flare-ups of the right ankle that are severe, occur weekly, and last 1 to 2 days. The Veteran explained that the flare-ups are precipitated if he tries to use his right ankle, when he bangs it, and when it transfers or twist. The Veteran explained that it is alleviated by medication and when he does not use the ankle. The Veteran further reported that he is unable to stand for more than a few minutes. During this examination, the Veteran underwent range of motion (ROM) testing. The examiner noted that there was objective evidence of pain with active motion on the right side. Right dorsiflexion was 0 to 0 degrees. Right plantar flexion was 0 to 0 degrees. The examiner further noted that the Veteran did not undergo testing for additional limitations after three repetitions as the Veteran stated that his ankle does not move. The examiner also noted that the Veteran did not have ankylosis. The examiner noted that the Veteran was guarding his right ankle. The examiner stated that she was unable to measure any discernable motion. The examiner further noted that the Veteran was able to passively invert and evert foot with stated pain. The examiner noted that this examination is consistent with the previous VA examination results from December 2005. The December 2010 VA treatment progress note states that the Veteran has chronic ankle pain and degenerative arthritis at the ankle and marked weakness in movements at the ankle joint. The examiner further noted that this is the reason he is unable to ambulate more than 10 to 15 feet without encountering significant ankle pain. The Veteran was afforded another VA examination in April 2011. The examiner noted that the ROM during plantar flexion was approximately 5 to 30 degrees. The examiner also noted that the Veteran is able to invert and evert the foot at approximately 20 degrees. The examiner noted that there was some pain with resisted eversion. The examiner noted that the ankle was stable and there was negative anterior drawer and talar tilt test. The examiner also noted that the Veteran has 5/5 dorsiflexion, plantar flexion and EHL function. The examiner noted that the Veteran has deformity of the right ankle, instability, pain, stiffness, weakness, decreased speed of the joint motion, swelling, and tenderness. The examiner noted that the Veteran was not tested for weight-bearing as the Veteran reported he would fall. The examiner further noted that during active ROM testing the Veteran did not exhibit pain. Right dorsiflexion was 0 to 0 degrees and plantar flexion was also 0 to 0 degrees. The examiner also noted that there was no joint ankylosis. This examiner noted that this examination was made in comparison with a previous examination of March 2008 and that there is no interval change. During the June 2015 VA examination, the examiner noted that the Veteran reported that he cannot put weight on his foot due to pain with attempted eversion and that the ankle remains inverted at rest or prefers to be in that position. The examiner noted that this is constant and is worst with weight-bearing attempts. The examiner noted that the severity is mild to severe, situational to weight-bearing and/or positioning. The Veteran reported flare-ups of the ankle; described as severe pain and sense of instability when attempting to stand; sometimes has increased pain depending on position of the ankle without weight-bearing; and duration of flare can be from minutes to many hours. The Veteran reported that he experiences such pain that it makes it extremely intolerable if not impossible to bear weight through right ankle, thus he avoids walking or using right ankle for any weight-bearing activities even from wheelchair level. The Veteran underwent ROM testing. During initial ROM testing, the examiner noted that the Veteran’s right ankle was abnormal or outside of normal range. The examiner further noted that dorsiflexion started at 15 degrees of plantar flexion, and ended at 5 degrees of plantar flexion, with noted pain inhibition expressed by the Veteran. The examiner noted that the ROM itself contributes to a functional loss. The examiner also noted that pain causes functional loss and there is pain with weight-bearing. The examiner noted that the Veteran was able to perform repetitive-use testing with at least three repetitions and that there was no additional loss of function. The examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. The examiner explained that objective evidence-based medical facts or direct real-time observations is outside the scope of his professional comportment, and expertise. The examiner further noted that the examination was not conducted during a flare-up and did not provide an estimation of increased functional loss during flareup. The examiner noted that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limits functional ability with flare-ups. The examiner explained that as a medical physician, to make such a guess without sufficient objective evidence-based medical facts or direct real-time observations is outside my scope of professional comportment, and expertise. The examiner noted that there was no ankylosis. The examiner also concluded that due to the Veteran’s ankle disability, there is no functional impairment of the right lower extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. The October 2019 VA examination reflects that the Veteran reported that he has flare-ups with severe pain and a sense of instability when attempting to stand. The Veteran further reported that sometimes he has increased pain depending on the position of his ankle without weight-bearing. The Veteran reported that his flare-ups can last from minutes to many hours. The examiner noted that the flare-ups are severe and occur multiple times a day. The examiner noted that the duration is situational but daily. The precipitating factors are standing and any changes in the ankle’s resting position. The alleviating factor is documented as no standing. The examiner noted that per the Veteran’s statement, flare-ups further effect functional impairment above and beyond the baseline self-reported impairment as severely. The examiner noted that the Veteran’s right ankle ROM is abnormal or outside of normal range. Dorsiflexion was at 0 to 5 degrees. Plantar flexion was at 0 to 15 degrees. The examiner noted that the Veteran was unable to perform repetitive-use testing with at least 3 repetitions as the examiner noted that pain inhibits the Veteran’s tolerance to perform the maneuver. The examiner noted that pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. The examiner further noted that pain caused this functional loss. The examiner noted that he was able to describe functional loss in terms of ROM. The examiner noted that the Veteran’s ROM during dorsiflexion was 0 to 5 degrees and plantar flexion was 0 to 10 degrees. The examiner noted that pain, weakness, fatigability or incoordination significantly limits functional ability with flare-up caused by pain. The examiner noted that dorsiflexion was 0 to 0 degrees and plantar flexion was 0 to 10 degrees, and that the Veteran does not have ankylosis. The examiner opined that the Veteran’s right ankle disability results in loss of use of the right foot. The examiner also concluded that due to the Veteran’s ankle disability, there is functional impairment of the right lower extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. The examiner noted that the right ankle pain, arthritis enthesopathies painful movements, altered positioning of the ankle, and pain causes increased spasticity. The examiner further noted that the spasticity of right lower limb interferences with ankle movements, positions, and placement on surfaces. The examiner noted that the Veteran’s ankle disability is severe and that he has pain, decreased motion, and decreased ability to weight-bear through the right ankle and right foot. The examiner noted that there was evidence of pain on passive range of motion testing, and when the joint was used in non-weight bearing. The examiner further noted that the opposing joint was not undamaged. Lastly, the examiner noted that it was medically feasible to test the opposing joint and that the joint was tested. This the Board finds sufficient to meet the requirements of 38 C.F.R. § 4.59 as explained in Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran contends that he is entitled to a disability rating in excess of 20 percent for his residuals of right distal fibula fracture. Throughout the appeal period, the Veteran’s residuals of right distal fibula fracture disability have been rated 20 percent under DC 5271. The evidence clearly establishes that the Veteran’s right ankle is painful during flare-ups. Thus, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. However, an additional ROM loss for pain is not available for the right ankle as the 20 percent rating is the highest rating available under DC 5271 and that DC is the appropriate DC for rating the disability. The Board finds that the effect of the Veteran’s symptomatology during a flare-up is contemplated in the 20 percent disability rating assigned. Considering all the evidence as described above, the Board finds that that the Veteran’s residuals of right distal fibula fracture disability has exhibited marked limitation of motion of the ankle during the period on appeal. As such, the Veteran’s residuals of right distal fibula fracture disability mostly closely approximate the criteria for the currently-assigned 20 percent disability rating under DC 5271. 38 C.F.R. § § 4.71a. The Board has considered whether an increased rating greater than 20 percent is warranted under other DCs pertaining to the ankle. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the criteria for a rating in excess of 20 percent under those diagnostic codes have not been met. The evidence of record does not show any ankylosis of the ankle, which is required for a rating under DC 5270. Finally, the Board acknowledges that the Veteran’s representative argues in his April 2018 informal hearing presentation that the Veteran should be awarded SMC for his right ankle disability. Accordingly, the Board will additionally contemplate whether a schedular evaluation SMC under 38 U.S.C. § 1114(k) is warranted in this case. SMC is payable to a veteran for anatomical loss or loss of use of one foot. 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350(a). Loss of use of a hand or a foot is generally held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function of the hand or foot, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance and propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis. Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches (8.9 cms.) or more, will be taken as loss of use of the hand or foot involved. Complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350 (a)(2), 4.63. (Continued on the next page)   As discussed above, the October 2019 VA examiner opined that the Veteran’s right ankle disability results in loss of use of the right foot. The examiner also concluded that due to the Veteran’s ankle disability, there is functional impairment of the right lower extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. Such evidence is highly competent, credible, and the most probative evidence of record. Accordingly, the Board finds that the Veteran has loss of use of his right foot in this case due to service-connected disability, and therefore an award of SMC under 38 U.S.C. § 1114(k) in this case have been met and is allowed. See 38 U.S.C. § 1114 (k); 38 C.F.R. § 3.350(a). JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Williams, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.