Citation Nr: 0004195 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 97-33 976 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE The propriety of the initial 10 percent disability rating for the service-connected residuals of a right ankle fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from December 1989 to July 1994. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision of the RO. The Board remanded the case in January 1999 for additional development. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected right ankle fracture residuals are not shown to be productive of functional limitation due to pain consistent with that of more than moderate severity; marked bony deformity is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected residuals of a right ankle fracture have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a including Diagnostic Codes 5003, 5010, 5271, 5273 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran claims that a service-connected disability is more severely disabling than as rated, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the veteran with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's right ankle disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. VA regulations require that, where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are for consideration in evaluating disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. Painful motion with the joint or periarticular pathology which produces disability warrants the minimum compensation. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59. Specifically, the applicability of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination, or pain on movement of a joint, must be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Office of General Counsel of VA has explained that, per DeLuca, Diagnostic Codes involving disability ratings for limitation of motion of a part of the musculoskeletal system do not subsume sections 4.40 and 4.45. O.G.C. Prec. Op. 9-98 (Aug. 14, 1998). In applying sections 4.40, 4.45 and 4.59, rating personnel must consider the claimant's functional loss and clearly explain what role the claimant's assertions of pain played in the rating decision. Id.; Smallwood v. Brown, 10 Vet. App. 93, 99 (1997). The record included an April 1996 private medical treatment report which noted that the veteran had an in-service right ankle injury in June 1994. The report noted that, upon review of the veteran's chart, there had been minimal swelling at the time of the fracture and "some pretty significant ecchymosis." The report noted that the veteran reported having continued pain in his right ankle, that he had occasionally felt "crunches" when he would put his foot down and that he was unable to run due to pain. The report also noted that the veteran walked with no apparent acute distress, that there was minimal swelling over the lateral malleolus on the right, that his toes had full range of motion and that his x-ray study was negative. An August 1996 report of VA examination noted that the veteran suffered an in-service right ankle injury. The veteran reported that he had experienced occasional swelling, stiffness and decreased range of motion. The report also noted that, upon examination, the veteran had a normal gait, good function and no secondary skin or vascular changes. Additionally, the report indicated that the veteran's dorsiflexion and plantar flexion of his right foot was approximately two degrees less than that of the left foot, but within normal limits. The report further indicated that the inversion and eversion were also within normal limits, but slightly decreased on the right foot, as compared to the left foot. The report also noted "a subcutaneous cystic feeling protuberance just distal to the inferior margin of the lateral malleolus." The report indicated that the protuberance was not tender or functionally significant. The record also included reports of private medical treatment from July 1997 to August 1999. A July 1997 entry noted a diagnosis, as demonstrated by x-ray studies, of traumatic arthritis in the veteran's right ankle and indicated that "loose bodies" were present in the right ankle. The entry also noted some restriction and crepitus of the right ankle. An August 1997 entry noted that, upon taking Voltaren, the veteran was completely pain free, with some continued stiffness. The entry also noted significantly less swelling and an improved range of motion. Furthermore, the entry noted that, ultimately, the ankle would need to be operated on. A June 1998 entry indicated that the veteran had reduced the frequency of his medication and that his ankle had been "doing fairly well." The entry also noted a very minimal crepitus in range of motion, described as "really non- restricted and non-painful." A January 1999 entry noted a slight crepitus in the right ankle. An August 1999 entry noted that the veteran had increased the frequency of his medication and that he worked 12-hour shifts on concrete and ladders. The entry noted that some crepitus was present. An August 1999 VA report of medical examination noted that the veteran reported that he had experienced some stiffness, aching and slight swelling. The report noted, upon physical examination, findings of a "slight puffiness" where the ankle joined the foot, a subcutaneous swelling that was not tender or of functional significance, and tenderness slightly inferior and anterior to the medial malleolus upon deep palpation that was not marked. The report also noted that the range of motion of the right ankle was without pain and was 15 degrees on dorsiflexion, 20 degrees on plantar flexion, 5 degrees on eversion. All were "slightly limited compared to the left ankle." The report noted that a range of motion of 10 degrees of inversion was "identical to the left ankle." Furthermore, the report noted that the "[r]ange of motion repeated against resistance did not produce pain." Additionally, the report noted that the veteran was able to stand on his tiptoes and heels without pain and that no weakness against resistance was demonstrated. The report noted diagnoses of chronic right ankle sprain with stiffness and discomfort and history of an old healed fracture with traumatic arthritis, visualized on x-ray studies. The examiner added that the veteran's pain was such that with medication it did not limit the functional ability of the ankle and that he had a strong enough ankle and foot that weakness could not be demonstrated. A VA x-ray report dated in August 1998 noted that the veteran had multiple traumatic joint mice about the right ankle. The veteran's service-connected disability, residuals of a right ankle fracture, is currently rated as 10 percent disabling under the provisions of 38 C.F.R. § 4.71a including Diagnostic Codes 5003, 5010 and 5271. Diagnostic Code 5010, traumatic arthritis, indicates that the disability should be rated as Diagnostic Code 5003, degenerative arthritis. Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis which is established by x-ray studies: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by x-ray studies, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, established by x-ray studies, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991), Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). Under Diagnostic Code 5271, a 10 percent evaluation requires moderate limitation of motion of the ankle. A 20 percent evaluation, the maximum under Diagnostic Code 5271, requires marked limitation of motion of the ankle. Under Diagnostic Code 5273, a 10 percent evaluation is assignable for malunion of os calcis or astragalus with moderate deformity. A 20 rating is warranted for marked deformity. Based on its review of the record, the Board finds that the veteran's right ankle disability is not shown to produce a more than moderate limitation of function due to pain. The August 1999 VA report of examination noted that the veteran's range of motion of his right ankle was "slightly limited compared to the left" and that the range of motion was without pain, even when repeated against resistance. The report also noted that no weakness was demonstrated, but that there was some right ankle stiffness and discomfort. Additionally, the August 1996 VA report of examination indicated a slight decrease in range of motion of the right ankle, as compared to that of the left ankle. Furthermore, the private medical evidence noted no more than minimal swelling, stiffness and crepitus involving the range of motion of the veteran's right ankle. Findings of related marked bony deformity were not demonstrated in the Board's opinion. Therefore, a rating higher than 10 percent is not warranted under the provisions of 38 C.F.R. § 4.71a including Diagnostic Codes 5003, 5010 and 5271. There is no evidence of record indicating that the veteran exhibited symptoms sufficient to support the assignment of a rating greater than 10 percent based on findings of marked limitation of motion of the ankle. The Board has considered whether the veteran is entitled to a "staged" rating for his service-connected disability as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds, however, that the veteran's service-connected right ankle disability is shown to have warranted the assignment of a 10 percent rating during the entire course of this appeal. Consideration has also been given to the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet. App. 589 and the Board has applied all the provisions of Parts 3 and 4 that would reasonably apply in this case. ORDER An increased rating for the service-connected residuals of a right ankle fracture is denied. STEPHEN L. WILKINS Member, Board of Veterans' Appeals