Citation Nr: 0005331 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-06 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for lumbosacral spine arthritis. 2. Entitlement to an increased rating for residuals of a left ankle fracture, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from January 1961 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) following a May 1996 decision of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied a rating greater than 20 percent for the veteran's service-connected residuals of a left ankle fracture. This matter also comes before the Board following a September 1996 action by the RO which denied service connection for low back disability. FINDINGS OF FACT 1. Competent medical evidence has been submitted which tends to show that lumbosacral spine arthritis has been aggravated by the veteran's service-connected left ankle disability. 2. The veteran experiences marked limitation of motion of the left ankle with pain. CONCLUSIONS OF LAW 1. The claim of service connection for lumbosacral arthritis is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.310 (1999). 2. A rating greater than 20 percent for residuals of a left ankle fracture is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a (Diagnostic Codes 5262, 5270, 5271) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and his representative allege that the veteran's degenerative joint disease of the lumbosacral spine was caused and/or aggravated by his service-connected left ankle disability. They also allege that the veteran's service- connected left ankle disability is manifested by chronic pain and instability which have become worse over time, thereby entitling the veteran to a higher rating. The veteran and his representative also request that the veteran be afforded the benefit of the doubt. Service Connection Claim A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 71, 81 (1990). Controlling laws and regulations provide that secondary service connection may be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310 (1999). Compensation is also payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Additionally, in order for a claim of service connection on a secondary basis to be well grounded, competent medical evidence showing a causal relationship or aggravation must be presented. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994); Allen, supra. The Board notes that Michael J. Murphy, M.D., opined in an August 1996 letter that "[i]nsofar as [the veteran's service-connected left ankle disorder] is a chronic problem it is reasonable to assume that [the service-connected left ankle disorder] has altered his gait mechanics over the years and has contributed to his back condition . . . Although[, his service-connected left ankle disorder] is not the only etiologic factor with regard to his back pain[,] it is certainly one of the factors and a contributing factor to his back condition." (Emphasis added). In addition, the veteran's low back disorder was diagnosed at a December 1996 VA examination as mild degenerative joint disease of the lumbosacral spine. Accordingly, because the record on appeal tends to show that the veteran has arthritis of the lumbosacral spine which, at the very least, was made worse by his already service- connected left ankle disability, the claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). See Caldwell v. Derwinski, 1 Vet. App. 466 (1991); Hampton v. Gober, 10 Vet. App. 481 (1997). In December 1996, a VA examiner opined that the veteran would have developed the back problem even if he had never injured his ankle. Nevertheless, this opinion does not appear to directly address the question of aggravation, as the August 1996 opinion did. See Allen, supra. Consequently, because the August 1996 letter indicates that the veteran's service- connected left ankle disorder was a contributing factor to the low back arthritis, the Board finds that this claim of service connection is well grounded. 38 C.F.R. § 3.310. Increased Rating Claim As to the veteran's claim for an increased rating for residuals of a left ankle fracture, the Board observes that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (1999). Additionally, although regulations require that a disability be viewed in relation to its recorded history, see 38 C.F.R. §§ 4.1, 4.2, when assigning a disability rating, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The veteran has been service connected for a healed left ankle fracture which was found to be 20 percent disabling under Diagnostic Code 5010-5271 (traumatic arthritis rated as limited motion). See 38 C.F.R. § 4.27 (1999). In this regard, the Board notes that, given potentially applicable rating criteria, the veteran will be entitled to a rating higher than 20 percent if he has malunion or nonunion of the tibia or fibula, or ankylosis at a certain position. Diagnostic Codes 5262, 5270, 5271. (The highest rating assignable for limited motion under Diagnostic Code 5271 is 20 percent.) Specifically, Diagnostic Code 5262 provides that malunion of the tibia or fibula with slight ankle disability warrants a 10 percent evaluation, with moderate ankle disability, a 20 percent evaluation, and with marked ankle disability, a 30 percent evaluation. Nonunion of the tibia or fibula with loose motion requiring a brace warrants a 40 percent evaluation. 38 C.F.R. § 4.71a (1999). In addition, Diagnostic Code 5270 provides that ankylosis of the ankle warrants a 20 percent evaluation when there is ankylosis in plantar flexion at less than 30 degrees. Diagnostic Code 5270. A 30 percent evaluation is warranted when there is ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees, and a 40 percent evaluation is warranted when there is ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. Id. The Board finds that, based upon the findings at the most recent VA examinations, and a review of all medical records associated with the claims file, the veteran does not have either malunion or nonunion of the tibia or fibula, or ankylosis of the left ankle. Therefore, he does not meet the requirements to be awarded a greater disability rating under either Diagnostic Code 5262 or Diagnostic Code 5270. Specifically, following a September 1963 closed reduction of the fracture, x-ray reports, dated from September 1963 to December 1963, did not show malunion or nonunion of the tibia or fibula. The record also included post-service VA x-rays, dated in December 1975, August 1978, November 1979, January 1994, April 1996, December 1996, and November 1998, as well as private x-rays from Dr. Murphy, dated in August 1996. While these x-rays revealed hypertrophic changes of the distal end of the medial malleolus, mild deformity of the lateral malleolus, degenerative joint disease, osteophytes marginally, and/or subchondral sclerosis, none of these x- rays revealed malunion or nonunion of the tibia or fibula. As stated above, Diagnostic Code 5262 requires malunion or nonunion of the tibia or fibula with either marked disability or loose motion for a higher rating to be assigned. Yet, as seen above, there is no medical evidence of either problem. In fact, x-rays taken shortly after the closed reduction of the fracture did not show either malunion or nonunion of the tibia or fibula. Therefore, a disability rating in excess of 20 percent is not warranted under Diagnostic Code 5262. The Board next considers the applicability of Diagnostic Code 5270. In this regard, the Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). However, the record on appeal is negative for findings of ankylosis. Specifically, the more recent evidence includes an October 1995 letter from Stephen Malaquias, M.D., as well as January and August 1996 letters from Dr. Murphy. These letters refer to the veteran's complaints and/or treatment for chronic left ankle pain and swelling (after approximately half an hour on his feet) diagnosed as post-traumatic degeneration of the left ankle. It was also reported that the veteran took Lodine and other anti-inflammatories for pain. However, they do not contain a diagnosis of ankylosis. When examined by Dr. Murphy in January 1996, the ankle had swelling, and range of motion was limited to +5 dorsiflexion and 20 degrees of plantar flexion. X-rays revealed joint space narrowing, osteophytes marginally, and some subchondral sclerosis. In August 1996, Dr. Murphy also reported that the veteran's left ankle examination was characterized by bimalleolar thickening. X-rays at that time revealed joint space narrowing, osteophytes marginally, and subchondral sclerosis. At a December 1996 VA examination, the veteran complained that he first starting experiencing post-service left ankle pain in 1975. He reported that he had a number of jobs since military service and that he quit his job as a firefighter in 1979 because of ankle and back problems. The veteran complained that he could not stand up for more than three- quarters of an hour on a hard surface and could only stand for one and a half hours on a soft surface. On examination, left ankle passive range of motion studies disclosed motion of 30 degrees of inversion, 30 degrees of eversion, 20 degrees of dorsiflexion, and 45 degrees of plantar flexion. Range of motion studies conducted when the veteran used his own power disclosed definite restrictions-- approximately fifty percent. Specifically, range of motion was 15 degrees of inversion, 10 degrees of eversion, 10 degrees of dorsiflexion, and 20 degrees of plantar flexion. The examiner reported that the veteran experienced pain with the range of motion studies. Moreover, the veteran could not rise up on the ball of his left foot even when standing on his right foot. However, the examiner indicated that, given that the veteran weighed 265 pounds, he did not think that this result was unexpected. X-rays revealed mild degenerative joint disease throughout the ankle, irregularity of the lateral malleolus, and irregularity of the medial malleolus. The examiner did not diagnose ankylosis. An October 1998 VA examination, the veteran complained that he could not stand for more than twenty minutes at a time, that he had trouble with stairs, and that he lost approximately one week of work a year because of left ankle flare-ups. On examination, range of motion was 10 degrees of eversion/abduction, 10 degrees of dorsiflexion, and 40 degrees of plantar flexion. Additionally, there was crepitus and bogginess. Moreover, when standing on just the left foot, he could not lift his heel off the ground. X-rays revealed severe degenerative joint disease. The examiner opined that the degenerative joint disease was very severe and that the veteran would require a fusion of the ankle in the future. However, once again, a diagnosis of ankylosis was not provided. In summary, the range of motion studies at the veteran's most recent VA examinations, conducted in December 1996 and October 1998, specifically show that the left ankle, while painful, was nonetheless mobile. Similar findings are found in the private treatment records. Therefore, in the absence of ankylosis, the Board may not rate his service-connected left ankle disability as ankylosis under Diagnostic Code 5270. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Consequently, given the veteran's ankle motion, an increased rating is not warranted under Diagnostic Code 5270. Although the veteran has complained of pain that affects his ankle function, it is important to note that the veteran's 20 percent rating is for "marked" limitation of motion under Diagnostic Code 5271--the highest disability rating available for limitation of motion of an ankle, short of ankylosis. In such an instance, where "the appellant is already receiving the maximum disability rating" for limitation of motion, consideration of the provisions of DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional impairment due to pain must be equated to loss of motion) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also VAOPGCPREC 36- 97 (Dec. 12, 1997). Additionally, while service connection is in effect for loss of motion of the left ankle and the record on appeal shows x-ray evidence of arthritis of the left ankle, it should be noted that arthritis is evaluated on the basis of limitation of motion which, as already noted, is accounted for by the limitation of motion rating under Diagnostic Code 5271. 38 C.F.R. § 4,71, Diagnostic Codes 5003, 5010 (1999). The Board, in reaching the conclusions noted above, has considered the veteran's arguments as set forth in his written statements to the RO and at his March 1997 personal hearings. Specifically, the veteran testified that his left ankle was stiff in the morning and throughout the day was unstable. He said that he had swelling and, after approximately half an hour to one hour of walking, the ankle was so painful that he could no longer stand up. He also reported that he used a cane to walk anytime he was away from home. Moreover, he testified that it took him approximately twenty minutes to loosen up his ankle in the morning and approximately ten minutes to loosen it up after driving. He testified that he periodically experienced a sharp shooting pain in his left ankle when standing that would cause him to fall if he did not have something to hold on to. He said that, after such a flare-up, it took him approximately thirty minutes of manipulating his ankle to reduce the pain enough so that he could get back on his feet. He also reported that he was taking Lodine for the pain. Lastly, the veteran testified that, while he had seen both his family physician and an orthopedic surgeon for treatment, they had both told him that there was nothing else they could give him to stop his pain except to fuse the ankle. While a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity is not probative evidence because only someone qualified by knowledge, training, expertise, skill, or education, which the veteran is not shown to possess, must provide evidence requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492, (1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Therefore, the Board finds that the preponderance of the evidence is against the claim for an increased rating for the service-connected left ankle disorder. Based on the argument made by the veteran, in both written statements to the RO and at VA examinations (i.e., that he has had trouble both obtaining and keeping employment because his left ankle disorder made it impossible for him to stand for more than 20 minutes), the Board has given consideration to the potential application of 38 C.F.R. § 3.321(b)(1) (1999). The veteran has filed with the RO an April 1979 retirement examination as well as a September 1979 memorandum from an ex-employer who reported that, in September 1979, the veteran retired/resigned his job as a firefighter, and a February 1996 letter from a different employer who reported that the veteran's application for disability retirement had been approved. However, the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (1999). There is no indication that the veteran's ankle problem alone led to extraordinary problems with employability beyond those contemplated by the 20 percent rating. The current evidence of record does not demonstrate that his left ankle problems have resulted in frequent periods of hospitalization or in marked interference with employment. § 3.321. It is undisputed that his service-connected disability has had an adverse effect on employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (1999). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the veteran under 38 U.S.C.A. § 5107 and 38 C.F.R. §§ 3.102, 4.3 (1999), but does not find that the evidence is in such approximate balance as to warrant its application. In short, the preponderance of the evidence is against the claim. ORDER The claim of service connection for lumbosacral spine arthritis is well grounded; to this extent, the appeal is granted. An evaluation greater than 20 percent for residuals of a left ankle fracture is denied. REMAND As noted in the Board's decision above, Dr. Murphy opined in August 1996 that that the veteran's service-connected left ankle disorder is a contributing factor to his low back disorder. Such a relationship suggests that a grant of compensation is warranted under 38 U.S.C.A. §§ 1110, 1131. Allen, supra. However, as also noted above, the December 1996 VA examiner opined that it was unreasonable to assume that the veteran's back disorder was due to the service- connected left ankle disorder because of the passage of time. Moreover, an October 1995 letter from Dr. Malaquias indicates that he had treated the veteran for low back strain arising out of a fall in February 1994. Similarly, a January 1996 letter from Dr. Murphy shows that the veteran sustained an on-the-job back injury in approximately 1994. The Court has stated that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski 1 Vet. App. 171, 175 (1991). The Court has also held that, where there is reasonable possibility that current conditions are related to or are the residuals of a condition experienced in service, VA should seek a medical opinion as to whether the veteran's current problems are in any way related to or are residuals of those experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). See, e.g., Molloy v. Brown, 9 Vet. App. 513 (1996); Alemany v. Brown, 9 Vet. App. 518 (1996); Lathan v. Brown, 7 Vet. App. 359 (1995); Dixon v. Derwinski, 3 Vet. App. 261 (1992) (physicians' statements that claimed disability "may be," "could be," or is "possibly" related to service or a service-connected disability sufficient to make claim of service connection well grounded); but see Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Warren v. Brown, 6 Vet. App. 4 (1993) (physicians' statements that there "could have been," or that there "may or may not be," a causal relationship were insufficient to make claim for service connection well grounded). Therefore, the Board finds that further evidence, or clarification of the evidence, in the form of a VA examination that takes into account the veteran's history as documented in the claim's file is essential before an appellate decision may be made on this claim of service connection. This is particularly so because the VA examiner who provided an opinion as to direct causation apparently did not address the possibility of aggravation under the Allen case. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be given an opportunity to supplement the record on appeal with pertinent evidence. The RO, given the veteran's March 1997 personal hearing testimony, should obtain and associate with the record on appeal copies of treatment records on file with the veteran's family physician and Michael J. Murphy, M.D. The RO, given Dr. Stephen Malaquias October 1995 letter and Dr. Murphy's January 1996 letter, should obtain and associate with the record on appeal copies of all medical records relating to the veteran's 1994 on-the-job back injury. 38 C.F.R. § 3.159 (1999). 2. The RO should schedule the veteran for a VA orthopedic examination. The examiner should review the entire claim's folder. All appropriate testing should be undertaken. The examiner should provide an opinion as to whether the veteran has a low back disorder that is caused or made worse, even to the slightest degree, by his service- connected left ankle disorder. Each opinion expressed should be explained in light of those opinions already of record, especially the August 1996 opinion provided by Dr. Murphy and the December 1996 opinion provided by a VA examiner. 3. After completion of the development requested above, the RO should again review the veteran's claim. If any action taken remains adverse to the veteran, both he and his representative should be furnished a supplemental statement of the case. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The appellant has the right to submit additional evidence and argument on the issues the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK F. HALSEY Member, Board of Veterans' Appeals