Citation Nr: 0001310 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-03 002A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating greater than 10 percent for residuals of a fracture of the left tibia and fibula. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Strommen, Associate Counsel INTRODUCTION The veteran served on active duty from January 1940 to February 1946. This case comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in December 1997, in which the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA) denied the veteran's claim of entitlement to a rating greater than 10 percent for residuals of a fracture of the left tibia and fibula. The veteran subsequently perfected an appeal of that decision. A video conference hearing on this claim was held on November 3, 1998, before Jeff Martin, who is a member of the Board and was designated by the chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In a February 1999 Board decision, this case was remanded to the RO for additional development. Upon completion of this development the RO again denied the veteran's claims. Accordingly, this case is properly before the Board for appellate consideration. FINDINGS OF FACT 1. All information necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran's residuals of a fracture of the left tibia and fibula are manifested by temporarily compromised functional ability during flare-ups; no objective evidence of organic pathology of left knee to explain symptoms; full range of motion in the ankle and knee with no loss of motion due to weakness, fatigue or incoordination; no crepitation; subjective complaints of pain and swelling, but no swelling, effusion, or atrophy on examination; subjective complaints of the left knee giving out, but no instability of the ligaments in the knee; minimal traumatic arthritis of the left ankle; 3/8 shortening of the left leg with healed fracture of the tibia/fibula in good position and alignment; and an inability to palpate a posterior tibial/dorsalis pulse in the left ankle. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for residuals of a fracture of the left tibia and fibula are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5262 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant testified at his November 1998 video conference hearing before a member of the Board that his left knee gives out on him on prolonged use, and that his left knee and ankle are painful and swell on use. He also testified that he falls once a week due to his knee, that his left leg is 3/4 of an inch shorter than his right leg due to his service- connected disability, and that he has to use a cane for balance and occasionally a rubber knee brace. The appellant's contentions regarding the increase in severity of his residuals of a fracture of the left tibia and fibula constitute a plausible or well-grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board further finds that the VA has met its statutory obligation to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran was initially granted service connection for his residuals of a fracture of the left tibia and fibula in a January 1985 RO rating decision. His disability was assigned a 10 percent rating effective July 18, 1985, the date of his claim. This evaluation was confirmed in a September 1987 Board decision. The Board again denied the veteran a disability evaluation in excess of 10 percent in an April 1990 decision. In decision of March 1991, March 1994, and May 1996, the RO denied the veteran's claims of entitlement to a rating greater than 10 percent for his residuals of fracture of the left tibia and fibula. In December 1997 the RO again denied the veteran an increased evaluation, and as noted above, the veteran perfected an appeal of this decision. The degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); see also Solomon v. Brown, 6 Vet. App. 396, 402 (1994). With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Penorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Pursuant to VA's Schedule for Rating Disabilities, 38 C.F.R. § 4.71a (1999) (Schedule), the RO ascertained the severity of the veteran's residuals of a fracture of the left tibia and fibula by application of the criteria set forth in Diagnostic Code 5262. Under this provision, a 10 percent rating is warranted for a slight knee or ankle disability, a 20 percent for a moderate knee or ankle disability, and a 30 percent for a severe knee or ankle disability. Also applicable for consideration in evaluating the veteran's disability are Diagnostic Code 5260 governing evaluation of limitation of flexion of the knee, Diagnostic Code 5261 governing evaluation of limitation of extension of the knee, 5271, governing limitation of motion of the ankle, and Diagnostic Code 5257, governing subluxation and lateral instability. Under these code sections, to satisfy the criteria for a rating greater than 10 percent the veteran must demonstrate that the knee is limited to either 30 or 15 degrees of flexion (Diagnostic Code 5260), that the knee is limited to 15, 20, 30 or 45 degrees of extension (Diagnostic Code 5261), that the knee has moderate or severe recurrent subluxation or lateral instability (Diagnostic Code 5257); or that the ankle has marked limitation of motion (Diagnostic Code 5271). Because the medical evidence does not indicate that the veteran has ankylosis of the left knee or ankle (Diagnostic Codes 5256, 5270, 5272); dislocation or removal of the semilunar cartilage in the knee (Diagnostic Code 5258, 5259); os calcis or astralgus malunion (Diagnostic Code 5273); or has had an astragalectomy on his left ankle (Diagnostic Code 5274), the provisions governing evaluation of these disabilities are not applicable. As stated above, the veteran has reported that his left knee gives out on him, that he has pain and swelling in the knee and ankle on use, that his left leg is shorter than the right, and that his left leg disability causes him to fall on a weekly basis. He also testified that he uses a cane for balance and occasionally uses a rubber knee brace. The medical evidence of record includes VA outpatient treatment records for the period from January 1996 to March 1999, and the veteran has not indicated that he has sought private treatment for his disability. These records contain approximately quarterly to semiannual notations that the veteran's arthritis/bursitis is stable. A November 1997 notation notes that the veteran complained of swelling in his left foot but that the evaluation was negative for swelling. In a December 1997 entry, it is noted that the veteran was assaulted but that his knees are within normal limits in size bilaterally with full range of motion. No objective evidence of subluxation and laxity are noted, but there are notations of the veteran's complaints that his knee gives out. Also of record are April 1996, October 1997, and April 1999 VA examination reports. The April 1996 examiner noted a marked limp, the October examiner a slight limp, and the April 1999 examiner found the veteran's gait to be normal, indicating improvement in this area over the years. The April 1996 examination report documents a mild residual bow and internal rotation of the left leg with traumatic arthritis of the left knee, ankle and subtalar joint. However, this examiner did not review x-rays when formulating this opinion as the report notes that x-rays were "pending." The 1996 examiner also notes that this deformity throws his left foot into a slight offset. Neurologically, the veteran's left leg was smaller than the right in the thigh and calf, with leg lengths being nearly equal. The veteran had poor pulses, some decrease in sensation, and no reflexes, but these were noted to be difficult to evaluate. The left knee was stable, with range of motion from zero to 140 degrees, which is the normal range of motion of the knee, with no crepitus. At the October 1997 examination, the left lower extremity was noted to have good alignment, with range of motion in the knee from zero to 135 degrees, indicating a five degree limitation of flexion. The left ankle had dorsiflexion of 5 degrees and plantar flexion of 30 degrees, with normal dorsiflexion being 20 degrees and normal plantar flexion being 45 degrees, thus revealing some limitation of motion on the ankle. There was also a tender callus formation over the mid-aspect of the left tibia. The examiner noted swelling in the left great toe and could not palpate a definite pulse in the left foot, but attributed the swelling to his diabetes. The examiner diagnosed residuals of an old left tibia-fibula fracture with traumatic arthritis. The April 1999 examination was performed in response to the Board's remand request. The examiner noted that the veteran's left knee had full extension and flexion of 145 degrees. There was no swelling, effusion, quadriceps atrophy, and no retropatella crepitation. The collateral ligaments were stable to varus and valgus stress on extension and flexion, and the Anterior Drawer Test was negative. Left leg was noted to have a minimal deformity, with no swelling or effusion of the left subtalar joint. Ankle range of motion was 20 degrees dorsiflexion and 45 degrees plantar flexion. The examiner was unable to palpate posterior tibial/dorsalis pulse in the left ankle. X-rays showed a healed fracture of the middle third of the tibia/fibula, healed in good position and alignment. The left knee had a slight elongation of tibial spines with no narrowing of the articular cartilage or osteophyte formation. The left ankle showed slight narrowing of articular cartilage in the lateral position, with no osteophytes, subchondral sclerosis or subchondral cysts. The examiner further noted that there was no objective evidence of organic pathology in the left knee to explain his reported symptoms, and diagnosed minimal traumatic arthritis of the left ankle. In response to information requested in the Board's remand, the examiner reported that there was no measurable weakness in the left lower extremity, and no loss of motion due to weakness, fatigue, or incoordination. He also noted that during an acute flare-up functional ability may be compromised, and that it was not feasible to estimate additional range of motion lost due to pain on use or during flare-ups. Relating the medical evidence to the appropriate diagnostic codes, the evidence fails to support any compensable amount for limitation of motion of the knee or ankle. None of the reported ranges of motion of the knee are more than 5 degrees off of normal, too insignificant a difference to warrant compensation under the regulations. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. As for the ankle, to warrant a rating greater than 10 percent there has to be marked limitation of motion. In his most recent examination his left ankle range of motion was normal, and although his dorsiflexion and plantar flexion were both limited by 15 degrees in the October 1997 examination report, the outpatient treatment records for this timeframe fail to indicate that the veteran was having difficulties, and, in fact, a November 1997 entry notes that although he complained of swelling, the examination was negative for swelling. Given the current improvement in his ankle range of motion, and the absence of corroborative evidence of treatment for an ankle problem, the Board finds that the mere fact that the veteran's left ankle motion was limited in October 1997 does not warrant the assignment of a 20 percent disability under Diagnostic Code 5271. As for Diagnostic Code 5257, the veteran's medical evidence shows no objective evidence of subluxation or laxity. Therefore, any compensation under this provision is not appropriate. Lastly, weighing the evidence under the provisions of impairment of the tibia and fibula, for an increase the veteran has to demonstrate a moderate impairment of the knee or ankle. Reviewing the medical evidence, the only current impairment presented is the veteran's reported pain on use of his left knee and ankle, his lack of a pedal pulse on the left, and a slight or mild deformity of the left tibia and fibula. His limp has been demonstrated to have improved, his range of motion is currently within normal limits in both the left knee and ankle, and no pain or swelling is objectively noted on the examination reports or outpatient treatment reports with the exception of swelling of the left great toe which was attributed to the veteran's diabetes. Given these factors, the Board finds that the medical evidence does not support a finding of a moderate impairment. The veteran's subjective pain, his neurological symptom and his mild deformity are satisfactorily compensated by his current 10 percent evaluation, and no increase is warranted under Diagnostic Code 5262. With regard to the veteran's service-connected traumatic arthritis of the left knee and ankle, the Board notes that claimant's are entitled to a separate rating for functional loss or limitation of motion due to pain when there is clinical evidence of arthritis and if the evaluation of his or her service-connected disability is pursuant to Diagnostic Code 5257, or another diagnostic code which does not involve consideration of limitation of motion. See VA O.G.C. Prec. 9-98 (August 14, 1998); VA O.G.C. Prec. 23-97 (July 1, 1997); 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Traumatic arthritis is evaluated under Diagnostic Code 5010, which requires consideration of the criteria for degenerative arthritis as laid out in Diagnostic Code 5003. Under the provisions of Diagnostic Code 5003, evaluation of degenerative arthritis is made on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Diagnostic Code 5003, also provides that if the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for "each such major joint of group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003." The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or painful motion. Additionally, Diagnostic Code 5003 states that in the absence of limitation of motion, with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating can be assigned and a 20 percent rating can be assigned for such evidence with occasional incapacitating exacerbations. As noted previously, functional impairment due to painful motion is one of the criteria for compensation for musculoskeletal disabilities. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Initially, the Board notes that there is no objective documentation of the veteran's pain on motion in his left knee and ankle, and his current ranges of motion in these extremities is normal, with no limitation as required for additional compensation under 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Additionally, because the veteran's subjective complaints of pain on motion and use in his left ankle and knee have already been considered in his evaluation under Diagnostic Code 5262, the assignment of a separate evaluation under Diagnostic Codes 5003, 5010, would result in the evaluation of the same disability/symptoms under various diagnoses and thus is prohibited by 38 C.F.R. § 4.14 (1999). Consequently, the Board finds that additional compensation pursuant to Diagnostic Codes 5010-5003, is not warranted. Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such 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. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). ORDER Entitlement to a rating greater than 10 percent for residuals of a fracture of the left tibia and fibula is denied. JEFF MARTIN Member, Board of Veterans' Appeals