BVA9505438 DOCKET NO. 92-11 396 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to restoration of a 20 percent evaluation for residuals of an injury of the right ankle, with status post tarsal tunnel release, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. S. Nemeth, Associate Counsel INTRODUCTION The veteran's active service extended from April 1979 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which reduced the veteran's disability rating for a right ankle disability from 20 percent disabling to 10 percent disabling. The 20 percent rating had been in effect since October 1988. The veteran's claim was previously before the Board in December 1992, at which time the case was remanded for further development to include obtaining private medical records and a VA orthopedic examination. The requested development has been completed and the Board will now proceed with the adjudication of this appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in reducing the disability rating of the residuals of his right ankle injury from 20 percent disabling to 10 percent disabling. He maintains that his right ankle has not substantially improved and that he continues to experience pain and swelling in his right ankle. He contends that at times the ankle will just give out, that he will experience a sharp pain in his right ankle, and that the pain from his right ankle will radiate into his leg. The veteran also contends that he can no longer participate in sports, cannot walk long distances, and can use his right ankle only for limited periods of time before he must rest it. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the confirmation of the assigned 10 percent rating for residuals of an injury to the right ankle based on limitation of motion of the ankle as well as an award of an additional 30 percent based on phlebitis of the lower extremity. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran injured his right ankle during service and subsequently underwent surgery, a right tarsal tunnel release for probable entrapment neuropathy of the posterior tibial nerve. 3. The veteran's service-connected right ankle disability is manifested by pain, swelling, and limitation of use. 4. The manifestations of the veteran's service-connected right ankle disorder produce a limitation of motion which is no more than a moderate disability. 5. The manifestations of the veteran's service-connected right ankle disorder are consistent with phlebitis with a persistent swelling of the leg which is relieved by rest and elevation and an area of discoloration over the lower third of the leg which is comprised of varicose veins and eczema. There has been no current evidence of ulceration. 6. The veteran's disabilities do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for residuals of an injury of the right ankle, based on phlebitic involvement, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.310 (a) and Part 4 Code 7121 (1994). 2. The criteria for a rating in excess of 10 percent for residuals of an injury to the right ankle, based on limitation of motion of the joint itself, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.310 (a) and Part 4 Code 5271 (1994). 3. The failure of the RO to consider or document its consideration of extraschedular ratings and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). It appears from the service medical records that the veteran first injured his right ankle in June 1979. At that time, an ankle sprain was diagnosed. Service medical records reveal continuous treatment for the right ankle, along with various diagnoses including chronic ankle sprain, tendonitis, and possible nerve entrapment. In September 1981, tarsal tunnel syndrome was diagnosed. In June 1983, the veteran underwent surgery for right tarsal tunnel release. Prior to the surgery, he reported medial ankle pain with radiation into the calcaneus and no associated weakness. He also reported numbness and tingling when the pain was most severe. There were continued complaints after the surgery. A June 1984 consultation revealed mild swelling and venous stasis in his right ankle, some possible hyperpathia near the surgical site, a normal neurological examination, and chronic pain syndrome. The examiner noted that the veteran had had sharp, shooting pain from the medial ankle to the mid calf since surgery, which was worsened by walking. The veteran reported that he had no weakness or numbness, but that the pain prevented sleep at night. An August 1984 service medical record notes that the veteran had had virtually no change in his condition since the surgery. In August 1984, the veteran was honorably discharged due to physical disability. An October 1984 VA examination showed that the veteran's right ankle had a well-healed surgical scar over the medial aspect of the ankle. No swelling or instability was noted; however, minimal crepitus and moderate tenderness over the medial aspect of the ankle were noted. Range of motion was full and there was no atrophy. A December 1984 rating decision granted service-connection for residuals of the veteran's right ankle injury, rated as 10 percent disabling. Attached to the claims file are private medical records dated from October 1987 to June 1993. The private medical records dated October 1987 reveal swelling in the veteran's right ankle as well as chronic venous stasis changes with a defect and tenderness in the scar. The veteran was told to stay off work for four days and keep his leg elevated. When he was allowed to return to work, he was to be on limited duty. When the veteran returned to the private clinic in October 1988, there was a 2 x 2 millimeter ulceration on the scar, minimal to no drainage, minimal surrounding erythema, and stasis pigmentation changes around the scar. He was prescribed antibiotics, leg elevation, soaking, and limited duty at work to attempt to stay off his feet. In November 1988, the veteran again had his right ankle examined at the private clinic. He was found to have had good range of motion of his ankle and subtalar joint. The portion of his scar behind the malleolus was very wide and tender. There were also varicosities in his right leg and venous stasis changes in his lower right leg and right ankle. The physician noted that the veteran would need a scar revision and that venous disease might be a contributing factor to the veteran's problem with his scar. An examination at the private clinic in December 1988 revealed chronic edema, some brawny induration beginning in the distal calf region in the ankle, and dilated tributary in the dermal veins in the entire region. The physician commented that the veteran looked as he had an old phlebitic limb. He also noted that there were apparently two scars on the veteran's right ankle, one from the service-connected injury -- in the inframalleolar area, and one from infancy, just above the malleolus. Cellulitis was subsequently diagnosed. Also in December 1988, the veteran underwent an excision of a scar along the inferior border of the medial malleolus on the right ankle as well as local stripping of varicosal veins. According to the physician who performed the surgery, in medical records dated January 1989, the veteran was totally disabled from December 7, 1988 through January 9, 1989, with three additional weeks of light duty (no prolonged sitting, standing, or use of stairs, and avoidance of ladders). The veteran was given a VA examination in January 1989, approximately one month after the surgery. The examiner found right ankle stasis changes and synovial thickening of the ankle joint. He found mild edema of the veteran's foot and ankle, marked tenderness in the surgical site, and some tilt to the ankle which was difficult to evaluate due to the recent surgery. Some lateral instability was also noted. The RO increased the veteran's disability rating to 20 percent in February 1989. The Board notes that the rating decision reflects an increased rating under 38 C.F.R. Part 4, Code 8515 (1994), paralysis of the median nerve, which is in the upper extremity. This probably represents a typographical error inasmuch as no neurologic pathology had been identified and the location of the involvement was incorrect. Although surgery had been performed in service for nerve entrapment, the only residuals reported since that time were either joint or vascular related. Private medical records, dated March 1989, show that the veteran fell and injured his right ankle. The diagnosis was minimal soft tissue injury. In January 1990, the veteran returned to the private clinic due to an ulcer on the medial aspect of his ankle, where he previously underwent surgery. He was examined at the private clinic in March 1990 and was found to have minimal edema in his right ankle and venous varicosities up to his knee on his right lower extremity. He had a superficial ulcer on his incision scar. He was treated and subsequent visits showed that the ulcer was completely healed. In April 1991, the veteran was given a VA examination. The examining physician reported a scar on the veteran's right ankle and foot, normal motions, excellent pulses, and mild varicose veins. He also noted the veteran's complaints of pain, swelling, and his inability to walk more than one mile. He then restated his findings and noted fair range of motion, no sensory loss, and good circulation. Following the April 1991 examination, the RO proposed a reduction in the veteran's disability rating to 10 percent. In May 1991, the veteran was examined at the private clinic and the examiner noted hypersensitivity in the region of the right ankle scar and evidence of a postphlebitic area in the medial aspect of the right ankle. The physician also noted the potential for breakdown of the skin and sinus tract formation. He commented that the veteran's disability should not change. A hearing was held in July 1991 and the veteran testified that he still could not stand for prolonged periods of time, that he still experienced pain and swelling in his right ankle, that he still could not walk long distances, and that the scar was still painful and in a deteriorating condition. He stated that the major problem was his skin and the pain in the ankle itself. The RO reduced the veteran's rating to 10 percent in August 1991. The veteran returned to the private clinic in October 1991. The physician noted that the appearance of the skin on the medial aspect of the ankle was much better in appearance and had healed surprisingly well. However, there continued to be considerable evidence of venous varicosities and venous insufficiency and the skin was at considerable risk for a breakdown. The physician noted that the right ankle itself had mild to moderate tenderness, both inferior and posterior to the medial malleolus. Flexion and extension were decreased by fifteen to twenty percent and there was continued chronic pain and restrictions of mobility. In a letter dated October 31, 1991, the physician additionally noted that the veteran frequently had pain in his right ankle while at rest, mild edema, and diminished range of motion in all spheres. He noted that despite the improvement in the appearance of the skin, the function of the ankle remained the same. In February 1992, the veteran testified at a hearing that he could still not stand for prolonged periods of time, that he elevated his leg during the workday, and if he did not elevate his leg, his ankle would become painful and swollen. He stated that he still could not walk long distances, a mile at the most, that he could no longer participate in sports or climb ladders, and that at times, pain from his ankle would disturb his sleep. He also stated that at times the ankle would just give out, that he would experience a sharp pain the his right ankle, and that the pain from his right ankle would occasionally radiate into his leg. The veteran sought treatment from the private clinic in February, May, and December 1992 for his right ankle pain. In May 1993, the veteran underwent a VA examination. On examination, the physician noted that the veteran walked with a regular gait, no limp, and was able to walk on his toes, heels, and outer borders of the feet easily, however, each time, the veteran reported increased pain at the bottom of his right heel. The examiner noted that the right foot was a little puffy and there was a bluish discoloration consistent with varicose eczema or tiny varicosities. He also noted the veteran's complaints of tenderness at the inferior and posterior aspects of the deltoid ligament in the right ankle, but much more tenderness on each side of the tendo Achilles and sharp tenderness at the plantar surface of the os calcis. Dorsiflexion of the right ankle was 10 degrees and the left was 8 degrees; right plantar flexion was 56 degrees and the left was 64; right midtarsal inversion was 40 degrees and the left was 50; right eversion was 22 degrees and the left was 16. Subtalar joints were extremely supple, with the right more so than the left. The veteran reported that active dorsiflexion and plantar flexion of the right foot were mildly uncomfortable. Passive motions of the right foot and ankle were either painful or uncomfortable. Peripheral motor power and sensation were normal. No sensory disturbance in either leg or instability of the right ankle was found. The right foot had larger measurements than the left. The malleolar area of the right ankle was one-half inch larger than that of the left. The veteran was originally given a disability rating of 10 percent under the diagnostic code for limited motion of the ankle. A 10 percent rating can be granted for a moderate limitation of motion and a 20 percent rating can be granted for a marked limitation of motion. 38 C.F.R. Part 4, Code 5271 (1994). A 10 percent rating for phlebitis can be granted where there is persistent moderate swelling of the leg which is not markedly increased on standing or walking. A 30 percent rating can be granted where there is persistent swelling of the leg or thigh which is increased on standing or walking for 1 or 2 hours, and readily relieved by recumbency. There should also be moderate discoloration, pigmentation, or cyanosis. A 60 percent rating is provided for persistent swelling, subsiding only very slightly and incompletely with recumbency elevation and with pigmentation, cyanosis, eczema or ulceration. 38 C.F.R. Part 4 Code 7121 (1994). The 20 percent rating was originally assigned by a February 1989 rating decision. The disability was described as "status post tarsal tunnel release" and rated under Code 8515. Code 8515 applies to an upper extremity nerve and is clearly incorrect for rating the ankle disability. Most importantly, the recent findings do not show significant neurologic involvement. Therefore, it would be inappropriate to consider any diagnostic code for neurologic impairment. The record does show vascular manifestations in the right ankle which have been present since service. These cannot reasonably be dissociated from the service- connected right ankle disability and should be rated as part of the service-connected disorder. 38 C.F.R. § 3.310(a) (1994). An October 1991 VA examination revealed that the flexion and extension of the veteran's right ankle were decreased by fifteen to twenty percent and that there was continued chronic pain and restrictions of mobility. In the May 1993 VA examination, the physician noted limitation in his range of motion of his right ankle which was accompanied with pain. Such findings are consistent with a 10 percent rating for a moderate rather than marked limitation of motion in the veteran's right ankle. 38 C.F.R. Part 4, Code 5271 (1994). Throughout the veteran's entire medical history as relates to his inservice right ankle injury, he has continuously complained of pain and swelling in the right ankle. Treating physicians have noted swelling, slight discoloration, and venous changes. Recent examination has revealed an area comprising the lower third of the leg and the ankle which is discolored. The examiner thought it was made up of varicose eczema or tiny varicosities. A physician noted in December 1988 that the veteran looked as if he had an old phlebitic limb. The veteran continues to use support hose on occasion, he continues to need to rest and elevate his right ankle for relief of pain and swelling, and he continues to be unable to walk long distances or stand for a prolonged period of time. These manifestations warrant a 30 percent disability rating for phlebitis. The veteran does not meet the criteria for the next higher rating of 60 percent for phlebitis due to the fact that there is no evidence of persistent swelling which is not relieved by rest and elevation. While the area is discolored and possibly eczematous this is not sufficient to provide a basis for a higher rating without unrelieved persistent swelling. 38 C.F.R. Part 4 Code 7121 (1994). This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). Any failure by the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER Entitlement to an increased rating for residuals of an injury to the right ankle based on limitation of motion is denied. Entitlement to an increased rating for residuals of an injury to the right ankle based on phlebitic involvement is granted. The grant of additional benefits are subject to the law and regulations governing the payment of monetary awards. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.