Citation Nr: 0000591 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 94-21 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for a disability characterized as compound fracture, left tibia and fibula, with bone graft and split thickness skin graft of the left foot, with ankle dorsiflexion limited to 10 degrees and synostosis between the tibia and fibula as well as one centimeter shortening of the left leg, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) rating for a disability characterized as low back pain, residual of compression injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from July 1989 to May 1993. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a notice of disagreement in writing received within one year of the decision being appealed and, after a statement of the case has been furnished, a substantive appeal received within 60 days of the issuance of the statement of the case or within the remainder of the one-year period following notification of the decision being appealed. The present case regarding the disability characterized as compound fracture, left tibia and fibula, with bone graft and split thickness skin graft of the left foot, with ankle dorsiflexion limited to 10 degrees and synostosis between the tibia and fibula as well as one centimeter shortening of the left leg (hereinafter described as a left lower extremity disability) arose from an August 1993 rating action. In that rating action, the RO awarded the veteran service connection for his left leg disability (then characterized as compound fracture, left tibia and fibula, with bone graft and split- thickness skin graft of left foot), and assigned a noncompensable evaluation. In a statement received in October 1993, the veteran expressed disagreement with the evaluation assigned for that disability, and a statement of the case was issued later that month. Following a VA examination conducted in November 1993, the veteran's disability was re-characterized as set forth on the front page of this decision and, by a January 1994 rating action, he was assigned a 10 percent disability evaluation effective from May 1993, when he was separated from service. A supplemental statement of the case was issued in February 1994, and the veteran's appeal in this regard was perfected upon the receipt, in April 1994, of a VA Form 9 (Appeal to Board of Veterans' Appeals). Thereafter, the case was transferred to the Board in Washington, DC. In December 1996, the Board remanded the case to the RO for additional development. After a number of failed attempts to have the veteran examined for VA purposes, the case was returned to the Board. In December 1998, however, the Board again remanded the claim for additional development and, in April 1999, a supplemental statement of the case was issued. The claim has since been returned to the Board for its review. Regarding the claim for an increased rating for the veteran's back disability, the record shows that the veteran was initially denied service connection for this disability in the August 1993 rating action mentioned previously. The veteran disagreed with that decision in the October 1993 statement in which he also disagreed with the evaluation assigned for his left leg disability. Then, in a January 1994 rating action, service connection was established for the veteran's low back disorder, with a noncompensable disability evaluation assigned. Without having notified the veteran of this decision, or receiving a notice of disagreement with it from the veteran, the RO issued a statement of the case addressing the evaluation assigned for the veteran's low back disability, in February 1994. In April 1994, the veteran expressed his disagreement with the evaluation assigned for his low back disability on a VA Form 9, i.e., that which was used to perfect his claim for an increased rating for his left leg disability. Thereafter, the case was forwarded to the Board, at which time jurisdiction was apparently accepted over this matter, since it was remanded for additional development along with the issue concerning the evaluation of the veteran's left lower extremity disability. As previously indicated, a number of attempts to have the veteran examined apparently failed, and the claims regarding the evaluation of the veteran's back and left leg disabilities were returned to the Board. The Board then remanded both of these claims in December 1998 and, in April 1999, the RO issued a supplemental statement of the case, which included, for the first time since the veteran expressed his disagreement with the evaluation assigned for his low back disability, the criteria considered in evaluating that disability. In May 1999, the veteran's representative submitted additional written argument on behalf of the veteran, and the case was again returned to the Board. FINDINGS OF FACT 1. All available evidence regarding the issues on appeal has been obtained by the RO. 2. The veteran's left lower extremity disability is not shown to be productive of moderate limitation of motion of the ankle, or more than a slight ankle impairment. 3. The veteran's low back disability is not shown to be productive of slight limitation of motion, or of more than slight subjective symptoms. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the veteran's left lower extremity disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 3.655, 4.2, 4.7, 4.31, 4.40, 4.45, 4.71, Plate II, Diagnostic Codes 5262, 5271, 5275 (1999). 2. The criteria for a compensable evaluation for low back pain, residuals of compression fracture, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 3.655, 4.2, 4.7, 4.31, 4.40, 4.45, Diagnostic Codes 5292, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the Board observes that when, the veteran seeks to establish a rating in excess of that which is currently assigned, his assertion that the disabilities at issue have worsened are, in general, sufficient to make the matter well grounded within the meaning of 38 U.S.C.A. § 5107. See Jackson v. West, 12 Vet. App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has asserted that the service-connected disabilities at issue are worse than currently evaluated by the RO, and he has, therefore, stated claims which are well grounded. With that initial burden having been satisfied, VA has a duty to assist the veteran in the development of facts pertaining to his claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996). The Court has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal, and that this duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). In this regard, the Board and the RO have made repeated attempts, since 1993, to have the veteran examined in order to evaluate the extent to which the disabilities at issue cause him impairment. It is observed that the Board specifically remanded the veteran's claims in December 1996, to have the veteran examined in a manner consistent with the requirements set forth by the Court of Appeals for Veterans Claims (formally the Court of Veterans Appeals) in the then- recent precedent case of DeLuca v. Brown 8 Vet. App 202 (1995). That examination was subsequently canceled because the veteran moved from Florida to Massachusetts. Accordingly, the Boston RO scheduled the veteran for examinations to take place in the Massachusetts area in August 1998. Without explanation, however, the veteran failed to report for those examinations, and the RO returned the case to the Board for its decision. The Board again remanded the case to the RO to give the veteran another chance to appear for the necessary examinations, but he again, without explanation, failed to report. These latter examinations had been scheduled to take place in February and April 1999. As the Court held in Wood v. Derwinski, 1 Vet. App. 190 (1991), "[VA's] duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Id. at 193. Here, the needed evidence is that which would be reported following a physical examination of the veteran. Obviously, the veteran can control whether such information is obtained, by simply failing to report for the examinations. He has been given ample opportunity to report for necessary examinations, and has repeatedly failed to report for them. Neither he nor his representative has offered any explanation to account for his failure to report; accordingly, the Board finds that the duty to assist the veteran has been satisfied in this case. As to the evaluation of the veteran's disabilities, that is determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the veteran's working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. In addition, the regulations provide, as to the musculoskeletal system, that it is "essential that the examination on which ratings are based" adequately portray any "functional loss" which "may be due to pain." Such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. . . . [A] part which becomes painful on use must be regarded as seriously disabled." 38 C.F.R. § 4.40. Moreover, in determining the factors causing disability of the joints, inquiry must be directed toward, inter alia, "[p]ain on movement." 38 C.F.R. § 4.45(f). See Schafrath v. Derwinski, supra, at 592 ("under the regulations, the functional loss due to pain is to be rated at the same level as the functional loss where [motion] is impeded"); see also DeLuca v. Brown, supra, at 205 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 139 (1992) a. Left Lower Extremity Regarding the veteran's left lower extremity disability, the record reflects that he sustained an open distal left tibia and fibula fracture in an April 1992 accident involving a "go-kart" in which he was riding. Initially, treatment apparently included multiple irrigations and debridement, and the application of an external fixation device. The external fixation device was evidently revised approximately a week after it was initially put in place, and a split thickness skin graft to the left foot was also performed. In July 1992, a piece of the veteran's left iliac crest was removed and grafted onto the posterolateral tibia/fibula to promote healing. Thereafter, the remainder of the veteran's period of service was evidently performed in a limited duty status, with his discharge occurring in May 1993. Shortly after his discharge from service, the veteran submitted an application for VA benefits. In connection with that claim, he underwent VA examination, which included a general medical examination and a special orthopedic examination. The orthopedic examination report revealed that, 10 months after the accident, the veteran was able to walk using only a cane for support, and, at the time of the examination, he was apparently able to walk without the use of any assistive device. He did, however, walk with a slight left-side limp. Range of motion of the knees was described as good, but further down the left extremity there was extensive scarring noted around the distal tibia as well as evidence of a split thickness skin graft over the anterior lateral aspect. Furthermore, it was observed that the veteran had about a one-centimeter shortening of the left leg, and a 1.5-centimeter atrophy of the left calf. He was also not able to toe walk as strongly on the left side as he was on the right, and there was a lack of 10 degrees of dorsiflexion of the left ankle. At the same time, however, there was full plantar flexion, and the range of subtalar motion was described as good. X-rays revealed evidence of what was described as a massive bone graft which resulted in union of the tibia fracture as well as a synostosis between the tibia and fibula. Also noted was a slight bit of medial angulation at the fracture site with the distal fragment angled about 15 degrees, in addition to a calcified ossicle distal to the medial malleolus. The examiner's clinical impression was as follows: Patient has had a serious open fracture of the left distal tibia and fibula which has been treated in a exemplary manner. He has gotten union of the fracture and good skin coverage without infection and at the present time still has some weakness and the residual pain at the donor site which in my experience usually disappears after a period of 2 to 3 years. He still has some atrophy of his left calf and needs [to] further strengthen with home exercises. I feel that the patient is an excellent candidate for any type of retraining and needs no further active orthopedic treatment at this time. The general medical examination report revealed that the veteran complained of severe pain over the left ankle area, but that he had discontinued taking any medication to relieve the pain since it did not help. The veteran was described as ambulatory, but with a slight limp, favoring the left leg. Nevertheless, his posture and carriage were described as good, although the examiner noted that there was what he considered to be moderate limitation of motion of the left ankle. (Actual measurements were not recorded.) Also observed was a marked decrease in tactile sensation over the distal half of the left lower extremity. The diagnosis was residuals of compound fracture, left lower tibia and fibula. There are no subsequently dated medical records relating to the veteran's lower extremity impairment, since, as indicated above, he apparently chose not to report to any of the later scheduled examinations. There are also no indications in the record that the veteran has received any subsequent treatment for his disability. In those cases where the veteran has repeatedly failed to report for scheduled examinations, we are mindful of the provisions of 38 C.F.R. § 3.655, which set forth guidance concerning the evidence to be considered when evaluating a service-connected disability under these conditions. In the context of an original compensation claim, where entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). In the context of a claim for an increased rating, in which a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination, the claim shall be denied. Id. In view of this, it must first be determined whether the evaluation of the veteran's left lower extremity disability arose in the context of an original compensation claim. If that is the case, we may proceed to address the merits of the appeal based upon the evidence currently of record. Here, the evidence shows that all rating actions in which a disability evaluation has been assigned for the veteran's left lower extremity disorder arose from his initial 1993 application for benefits, and none of those rating actions became final before an appeal with respect to that disability evaluation was perfected. In view of that, while it has been six years since the veteran's claim was initially filed, we find that the current appeal arises out of an original compensation claim. Accordingly, we shall evaluate the veteran's claim based upon the evidence of record, rather than simply deny it as otherwise provided by section 3.655(b). With respect to the veteran's left lower extremity, it is noted that the RO has rated it under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5262, for impairment of the tibia and fibula. Under this code, nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. Malunion of these bones, with marked knee or ankle disability, is rated 30 percent disabling. With moderate knee or ankle disability, a 20 percent rating is assigned, and, with slight knee or ankle disability, a 10 percent rating is assigned. Given that the veteran's injuries occurred to his distal tibia and fibula, consideration of Diagnostic Code 5271, concerning limitation of motion of the ankle, would also be appropriate. Under this code, moderate limitation of motion of the ankle is rated 10 percent disabling. When there is marked limitation of motion, a 20 percent rating is assigned. This is the highest rating under this code. Normal range of motion of the ankle is from 0 to 20 degrees dorsiflexion, and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. On the foregoing record, the Board is of the opinion that the criteria for an evaluation in excess of 10 percent for the disability at issue have not been met. In this regard, we note that, while the veteran has lost the ability to dorsiflex his ankle by 10 degrees, the normal range of motion in this plane is to only 20 degrees. The veteran has retained full range of plantar flexion, and subtalar motion was described as good. Therefore, while the veteran was described as having moderate limitation of motion of the ankle following his general medical examination, when consideration is given to all planes in which the ankle moves, as well as the actual measurement of ankle motion recorded during the special orthopedic evaluation, it is clear that, for purposes of assigning even a 10 percent evaluation for limitation of motion of the ankle under Diagnostic Code 5271, moderate limitation is not shown. With regard to the provisions of Diagnostic Code 5262, the Board notes that the veteran is able to walk without the use of any assistive device, and had only what was described as a slight left-side limp. Range of motion of his knees was described as good, and the only plane in which motion of the ankle was limited was in dorsiflexion. Furthermore, the examiner concluded that the veteran needed no further active orthopedic treatment, but only required home strengthening exercises. In view of this, the Board finds that more than slight impairment to the veteran's distal left lower extremity is not shown. Accordingly, an evaluation in excess of 10 percent for his compound fracture, left tibia and fibula, with bone graft and split thickness skin graft of the left foot, with ankle dorsiflexion limited to 10 degrees and synostosis between the tibia and fibula as well as one centimeter shortening of the left leg, is not warranted. In making this decision, the Board has also considered the provisions of Diagnostic Code 5275, which concerns evaluating the impairment caused by shortening of bones of the lower extremities. Under this code, however, it is necessary for the shortening to exceed 3.2 centimeters. The veteran in this case has only a one-centimeter shortening of the leg, so he does not meet the criteria under this code for a compensable evaluation. b. Low Back A review of the records reflects that, during examination in November 1993 to evaluate the impairment arising out of the distal tibia and fibula fracture described above, the physician who conducted that examination obtained X-rays of the veteran's lumbosacral spine. These revealed the presence of a loose ossicle of bone over the anterior superior aspect of the body of L-4. The additional presence of rounding of the anterior inferior aspect of L-4 tended to make this examiner believe the findings were a consequence of a small compression fracture that occurred when the veteran injured his leg. In view of these findings, the RO, resolving reasonable doubt in the veteran's favor, awarded him service connection for low back pain, residual of compression injury. Other findings noted with respect to the veteran's back, on that examination report, included a report that he had "a good range of motion but with some persistent manipulation." In addition, it was noted that straight leg raising was possible through a full range bilaterally, although there was some voluntary muscle guarding. There were no other observations made with respect to the veteran's back, since, as indicated above, the primary focus of the examination appears to have been to evaluate the veteran's lower extremity impairment. Following this examination, no additional medical records addressing the veteran's back impairment have been associated with the claims file. As previously mentioned, between 1997 and 1999, several attempts were made to have the veteran examined, but without explanation, he failed to report for any of the scheduled examinations. As a result, we are left with only the findings noted in the 1993 examination, and the veteran's vague complaints of discomfort as expressed on the April 1994 VA Form 9. As discussed in the context of the evaluation of the veteran's left lower extremity disability, we must also consider the provisions of 38 C.F.R. § 3.655, as they relate to the evaluation of the veteran's back disability. As with the ratings addressing the veteran's lower extremity, those which address his back disability also arose out of the veteran's initial 1993 claim for benefits, and none became final before the veteran perfected his appeal concerning his back evaluation. Accordingly, we find that the appeal of the rating assigned for the veteran's back disorder arose from an original compensation claim, and we will evaluate this claim based on the evidence of record, rather than denying it under section 3.655(b). The veteran's service-connected back disability has been evaluated under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5295, for lumbosacral strain. Under this code, a 0 percent rating is assigned for lumbosacral strain with slight subjective symptoms only. A 10 percent evaluation is assigned with characteristic pain on motion. A 20 percent rating is assigned with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. Finally, a 40 percent rating, the highest rating under this code, is assigned for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Pursuant to Diagnostic Code 5292, slight limitation of motion of the lumbar spine is assigned a 10 percent rating. A 20 percent rating is assigned for moderate limitation of motion of the lumbar spine, and a 40 percent rating is assigned for severe limitation of motion of the lumbar spine. In this case, the only objective medical findings concerning the veteran's back show that he had voluntary muscle guarding, but what was considered a good range of motion. It is not clear what the examiner meant when he indicated that this motion was accompanied by "some persistent manipulation," but since the range of motion was characterized as good, and the veteran accomplished straight leg raises through a full range, it is the Board's view that even slight limitation of motion has not been demonstrated. Moreover, given that the veteran's complaints consist of only vague discomfort, we find no more than slight subjective symptoms are shown. Under these circumstances, a basis upon which to assign a compensable evaluation for the veteran's low back disorder are not met. c. Additional Considerations In concluding that increased ratings for the veteran's left lower extremity and low back disabilities are not warranted, the Board has also considered other provisions which might provide for a favorable decision, including those of 38 C.F.R. §§ 4.40, 4.45, as they relate to pain and any resulting functional impairment due to pain. The decision of the Court of Appeals for Veterans Claims in DeLuca v. Brown, supra, emphasized that the Board must consider whether a higher evaluation is in order based upon a greater limitation of motion due to pain on use, including during flare-ups. In this regard, we note that the available medical reports showed complaints of pain, but not in the context of range- of-motion tests. Moreover, the veteran's range of motion as to both his back and ankle is apparently nearly intact, with no indication of any degree of additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination. There is also no medical suggestion of pain that significantly limits functional ability during flare- ups, and, indeed, no medical evidence showing that the veteran experiences periods of flare-ups where his range of motion is worse due to pain. Furthermore, with respect to his left lower extremity, as the veteran has been assigned a 10 percent rating, which under the provisions of Diagnostic Code 5271 contemplates moderate limitation of motion of the ankle, any additional impairment that may result from pain or on flare-ups is adequately compensated. As to his back, the medical evidence does not reflect any actual loss of motion. Under these circumstances, it is the Board's view that consideration of the provisions of sections 4.40 and 4.45 does not call for the assignment of disability ratings in excess of those which are currently assigned. ORDER Entitlement to an increased rating for compound fracture, left tibia and fibula, with bone graft and split thickness skin graft of the left foot, with ankle dorsiflexion limited to 10 degrees and synostosis between the tibia and fibula as well as one centimeter shortening of the left leg, is denied. Entitlement to an increased (compensable) rating for a disability characterized as low back pain, residual of compression injury, is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals