Citation Nr: 0202744 Decision Date: 03/25/02 Archive Date: 04/04/02 DOCKET NO. 00 15-377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to assignment of a higher evaluation for service-connected osteoarthritis of the right ankle secondary to a right ankle sprain, currently evaluated as 10 percent disabling. 2. Entitlement to assignment of a higher evaluation for service-connected traumatic arthritis of the left ankle secondary to residuals of a left ankle injury, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The veteran had active service from January to April 1985, and from November 1985 to September 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from August and November 1999 rating decisions by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2002, the veteran testified at a Board videoconference hearing. FINDINGS OF FACT 1. The veteran's service-connected osteoarthritis of the right ankle secondary to a right ankle sprain is manifested by no more than moderate limitation of motion, but with pain, swelling, incoordination and instability causing additional functional loss which (by analogy) results in a disability picture more nearly approximating moderate ankle disability. 2. The veteran's service-connected traumatic arthritis of the left ankle secondary to residuals of a left ankle injury is manifested by no more than moderate limitation of motion, but with pain, swelling, incoordination and instability causing additional functional loss which (by analogy) results in a disability picture more nearly approximating marked ankle disability. CONCLUSIONS OF LAW 1. The criteria for assignment of a 20 percent disability rating (but no higher) for the veteran's service-connected osteoarthritis of the right ankle secondary to a right ankle sprain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2001). 2. The criteria for assignment of a 30 percent disability rating (but no higher) for the veteran's service-connected traumatic arthritis of the left ankle secondary to residuals of a left ankle injury have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.7, 4.20 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The August and November 1999 rating decisions granted service connection for osteoarthritis of the right ankle secondary to a right ankle sprain, and traumatic arthritis of the left ankle secondary to residuals of a left ankle injury. Respectively, 10 percent ratings were assigned. The veteran claims that higher ratings for the disabilities are warranted, and that the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5262 should be applied. The Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2001). This newly enacted legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). After reviewing the claims folder, the Board finds that there has been substantial compliance with the assistance provisions set forth in the new law and regulation. The record in this case includes pertinent service medical records, a postservice military examination report, a July 1999 VA medical examination report, and two private medical examination reports dated July 1999. No additional pertinent evidence has been identified by the veteran as relevant to the issues on appeal. The veteran testified at the January 2002 videoconference conducted by the undersigned Board Member that no other records were available. Under these circumstances, no further action is necessary to assist the veteran with his claims. Furthermore, the veteran has been notified of the applicable laws and regulations which set forth the criteria for entitlement to assignment of a higher rating for his ankle disabilities. The discussions in the rating decisions, statements of the case, and supplemental statements of the case have informed the veteran of the information and evidence necessary to warrant entitlement to the benefits sought. The Board therefore finds that the notice requirements of the new law and regulation have been met. The Board has reviewed the facts of this case in light of VCAA and the new VCAA regulations. As discussed above, VA has made all reasonable efforts to assist the veteran in the development of his claims and has notified the veteran of the information and evidence necessary to substantiate the claims. Consequently, the case need not be referred to the veteran or his representative for further argument as the Board's consideration of the new law and new regulations in the first instance does not prejudice the claimant. See generally Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet.App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992). Under the circumstances of this case, where there has been substantial compliance with the new legislation and the new implementing regulation, further development would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In the present case, since the veteran is appealing the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Service medical records confirm that the veteran sustained bilateral ankle injuries, variously diagnosed as synovitis, tendinitis, and ankle sprains. In January 1985 a fracture of the left distal fibula was reported. A physical evaluation was performed at a military medical facility in August 1991. It was reported that one year previously the veteran had sustained a hyperplantar flexion inversion strain to the left ankle. The veteran complained of left ankle pain with instability. The physical examination revealed swelling and limitation of motion of the left ankle. It was reported that there was no anterior drawer sign. An X-ray revealed a 5-8 millimeter fragment of the left distal fibula. Probable nonunion distal fibula fracture was reported as a diagnosis. At a private medical examination in early July 1999, the veteran complained of bilateral ankle pain. The veteran reported "repetitive giving way," which had caused him to cease running and any vigorous athletic activities. The physical examination revealed moderate swelling over both ankles and well preserved range of motion of the ankles. A positive anterior drawer sign was reported bilaterally. X- rays revealed degenerative changes of both ankles. The diagnosis was sprain of ankle calcaneofibular. A VA medical examination was performed in mid-July 1999. The examiner reported that the veteran's service medical records revealed a small fracture of the distal fibula. It was also indicated that the veteran had been informed that he had torn or lax tendons and ligaments, but surgery was not yet recommended. It was further reported that a CT scan in 1991 revealed a small fragment of the distal fibula compatible with nonunion. The veteran complained of left ankle pain and swelling at the end of the day after walking. He had recently been granted a sedentary job. It was reported that a private physician had prescribed air casts for both ankles with instruction not to wear boots or dress shoes. The veteran stated that he wore tennis shoes. He also complained of achiness and stiffness, but mainly swelling and pain at the end of the day. He was unable to jog or run and his left ankle felt unstable. He was unable to jump and he walked slowly. The veteran avoided climbing or going down steps because he was unable to flex his ankle while wearing air casts. If he had to, he climbed steps one at a time while holding on to a rail. He was unable to squat. The physical examination of the right ankle revealed no objective abnormality. Plantar flexion of the right ankle was to 40 degrees and dorsiflexion was to 10 degrees. The left ankle revealed mild lateral malleolus swelling. On the left ankle, plantar flexion was to 40 degrees and dorsiflexion was to 10 degrees with complaints of pain on these maneuvers. The veteran was able to walk on both heels with some difficulty and on both toes with great difficulty. Crepitation on motion of the left ankle was reported. The feet were slightly pronated. An X-ray of the left ankle revealed post-traumatic changes involving the lateral malleolus with avulsion of a very small portion inferiorly of the lateral malleolus. Slight post-traumatic changes were also seen involving the medial malleolus with subchondral cystic changes. The diagnoses were: recurrent bilateral ankle sprain, more so on the left one; status post fracture of the distal left fibula; traumatic arthritis of the left ankle. At a private medical examination in late July 1999, it was reported that the veteran had progressive loss of use of both feet that affected his performance in walking, running activities, or any locomotion. The physician reported that he had treated the veteran with bilateral ankle braces that had helped. The physical examination revealed a positive bilateral drawer sign. X-rays showed degenerative changes of both ankles secondary to instability. The diagnoses were: sprain of ankle calcaneofibular; instability of both ankles; progressive osteoarthritis of both ankles secondary to multiple sprains in the past. The physician commented that reconstruction (surgery) would be needed in the future. In January 2002, the veteran testified at a Board videoconference hearing. The veteran testified that he wore ankle braces that had been prescribed which prevented a " give way problem." He stated that while assisting a professor he was unable to stand more than 45 minutes. He stated that he was precluded from playing ball with his children. He averred that he had swelling in his ankles in the evening and had a lot of (ankle) pain. He testified that he was unable to walk on uneven surfaces and that he wore ankle braces all day. He stated that he had problems climbing stairs and that he elevated his ankles for a couple of hours to relieve symptoms. He testified that he had pain in his feet all of the time. The veteran testified that there were no other medical records to be obtained. The veteran specifically requested that his ankle disorders be considered under Diagnostic Code 5262. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma substantiated by X-ray findings is rated as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. Limitation of motion of an ankle is rated under Diagnostic Code 5271. The veteran is currently rated as 10 percent disabling for each ankle disability. Such a rating is warranted for moderate limited motion. The highest rating available under this Code is 20 percent for marked limited motion. The Rating Schedule does not set forth a specific Diagnostic Code for instability of the ankle. Further, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, more movement than normal, and excess fatigability and incoordination. 38 C.F.R. § 4.59 also contemplates consideration of painful motion as an important factor of disability and provides that evidence of painful motion should be carefully noted. See DeLuca v. Brown, 8 Vet. App. 202 (1995). It is at once clear from the evidence that there is no basis for assigning a rating in excess of 10 percent for either ankle disability solely by looking to the limitation of motion provisions of Diagnostic Code 5271. In July 1999, range of motion studies of the both ankles revealed that plantar flexion was to 40 degrees and dorsiflexion was to 10 degrees. Normal range of motion of an ankle is from 0 to 45 degrees for plantar flexion and 0 to 20 degrees for dorsiflexion. See 38 C.F.R. § 4.71, Plate II. The Board views the objective clinical findings as showing no more than moderate limited motion of either ankle. Even acknowledging the veteran's complaints of pain on extended use and the notation of pain on range of motion testing of the left ankle in July 1999, the Board is unable to conclude that there is more than moderate limited motion due to additional functional loss as a result of such pain. 38 C.F.R. §§ 4.40, 4.45, 4.59. In fact, the demonstrated range of motion shows only slight limitation and it would appear that the current 10 percent ratings have been assigned in recognition of symptomatology such as pain. In sum, the Board must conclude that entitlement to ratings in excess of the current 10 percent for the veteran's ankle disabilities is not warranted under the ankle criteria based on limitation of motion. It is the veteran's strong contention, however, that the current 10 percent ratings do not contemplate the instability associated with the bilateral ankle disabilities. Looking to the Rating Schedule, there is no specific Code for rating ankle instability. The veteran points to the provisions of 38 C.F.R. § 4.20 which allows VA to rate by analogy to another Diagnostic Code with a particular disorder is not listed in the Rating Schedule. The veteran has requested that the provisions of Diagnostic Code 5262 be applied by analogy. Under Diagnostic Code 5262, a 40 percent evaluation will be assigned for impairment of the tibia and fibula where there is nonunion, with loose motion, requiring a brace. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 10 percent rating is warranted for malunion with slight knee or ankle disability. With regard to the veteran's complaints of instability, the Board finds that instability of the ankles is supported by the findings of various medical examiners. For example, a positive anterior drawer sign was reported bilaterally on private examination in July 1999, and the physician reported treating the veteran with ankle braces. Pertinent diagnoses at that time included instability of both ankles. The evidence also clearly demonstrates that the left ankle disability is more severe than the right ankle disability. The veteran has also indicated to medical personnel during the course of treatment that his left ankle was more symptomatic than the right. Further, medical examiners have consistently described the left ankle disability as being more severe. Comparing Code 5271 for limited motion and Code 5262 which contemplates ankle disability associated with impairment of the tibia or fibula, the Board notes that Code 5262 refers to "ankle disability" which is a broader descriptive phrase than "limited motion" as used in Code 5271. This suggests to the Board that limitation of motion can reasonably be considered in determining the overall degree of ankle disability. The Board also notes that moderate limited motion under Code 5271 warrants a 10 percent rating whereas moderate ankle disability under Code 5262 warrants a 20 percent rating. Likewise, marked limited motion under Code 5271 warrants a 20 percent rating whereas marked ankle disability under Code 5262 warrants a 30 percent rating. The Board believes that the fact that higher ratings are warranted for ankle disability under Code 5262 than for limited motion of the ankle under Code 5271 also makes it reasonable to conclude that assignment of a rating under Code 5262 would contemplate both limited motion and other ankle disability, such as instability. In other words, the Board finds that there is a plausible basis for rating the veteran's ankle disabilities by analogy to Code 5262 to recognize limited motion as well as the instability which is not otherwise addressed by rating criteria for the ankle under 38 C.F.R. § 4.71a. Rating by analogy in this manner would be of potential benefit to the veteran. However, by applying Code 5262 in this manner, the Board stresses that a separate rating under Code 5271 for limited motion cannot be assigned as it would violate the pyramiding prohibition of 38 C.F.R. § 4.14. After weighing the overall evidence, including the veteran's testimony, the Board concludes that the left ankle disability (to include limited motion and instability) more nearly approximates marked ankle disability so as to warrant a 30 percent rating under Code 5262. In this regard, the record clearly demonstrates that this ankle disability is more severe. Left ankle pain was noted on examination, and medical examiners have described this disability as more severe than the right ankle. Moreover, the record suggests some actual involvement of the fibula in the form of x-ray evidence described as a probable fracture of the distal fibula with non-union. However, while instability has been reported, there is no evidence on clinical examination of loose motion of the left ankle so as to warrant a 40 percent rating. Turning to the right ankle, the Board finds that a 20 percent rating is warranted by analogy to Code 5262. Such a rating would recognize the demonstrated limited motion and the clinically demonstrated instability. However, considering the degree of limited motion which is no more than moderate together with the instability, the Board is unable to conclude that this combination of limited motion and instability results in no more than moderate ankle disability. A rating in excess of 20 percent under Code 5262 is therefore not warranted. With regard to both disability ratings, the evidence pertinent to the time period covered by this appeal leads the Board to conclude that the degree of disability has essentially remained the same since the effective date of the grants of service connection for each ankle disability. In other words, the Board finds that the 20 percent rating for right ankle disability and the 30 percent rating for left ankle disability should be assigned from the effective dates of the grants of service connection for each disability. Fenderson v. West, 12 Vet. App. 119 (1999). In reaching the above determinations, the Board has resolved all reasonable doubt in the veteran's favor. 38 U.S.C.A. § 5107(b). Further, the potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that his service connected disorders have resulted in marked interference with employment or necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that criteria for submission for assignment of extraschedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 20 percent rating for the veteran's service- connected right ankle disability is warranted. Entitlement to a 30 percent rating for the veteran's service-connected left ankle disability is warranted. To this extent, the appeal is granted subject to laws and regulations governing the award of VA benefits. ALAN S. PEEVY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.