Citation Nr: 0001696 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-11 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a compensable disability rating for service- connected residuals of a right ankle injury, on appeal from the initial grant of service connection. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jonathan E. Taylor, Associate Counsel INTRODUCTION The appellant had active military service from December 1977 to December 1997, according to his Certificate of Release or Discharge from Active Duty, DD Form 214. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 1998 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) regional office (RO). FINDINGS OF FACT 1. The appellant's claim is plausible, and the RO has obtained sufficient evidence for an equitable disposition of this claim. 2. The appellant's service-connected residuals of a right ankle injury are manifested by mild limitation of motion, subjective complaints of pain and weakness, and additional functional limitation during flare-ups, equivalent to moderate limitation of motion. CONCLUSIONS OF LAW 1. The appellant has stated a well-grounded claim for a higher disability rating for residuals of right ankle injury, and VA has satisfied its duty to assist him in development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a schedular disability rating of 10 percent, and no more, for residuals of right ankle injury have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5270, 5271, 5272, 5273, 5274 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In a statement, dated in October 1997, the appellant stated that he injured his right ankle in May 1988. He stated that he sought treatment for his right ankle in March 1991 after he fell while getting out of bed. He stated that treatment with Motrin(tm), physical therapy, light exercise, and injections provided only temporary relief, so, he discontinued treatment and elected to endure the pain. He stated that he exercised to loosen his ankle by jogging and playing volleyball. He stated that five months previously he had re-injured his ankle. He stated that he was treated with physical therapy but that pain remained constant. At a February 1998 VA orthopedic examination, the appellant provided a history of a twisting injury of the right ankle in 1988. He stated that the injury did well for a couple of years but then the pain recurred and had continued since that time. The appellant reported treatment with anti- inflammatory medication and injections to the ankle with no more than short-term relief. He complained of continued ankle pain worsened with increased stress placed upon the ankle such as with recreational sports activities such as volleyball. The appellant stated that he had since given up this activity. The appellant stated that he was able to walk and jog without particular problems. The appellant described some numbness and tingling in the right foot. The examiner noted that the appellant had an unremarkable gait pattern. The examiner noted no evidence of redness, heat, or swelling in the right ankle. The examiner noted tenderness to palpation over the area of the anterior talofibular ligament and over the area of the posterior tibial tendon sheath. No instability of the ankle was found. The range of motion of the appellant's right ankle was from 10 degrees of dorsiflexion to 40 degrees of plantar flexion. X-ray examination of the appellant's right ankle was normal. The examiner diagnosed residuals of right ankle sprain- posterior tibial tendonitis and possible tarsal tunnel syndrome. The examiner requested that the appellant be evaluated for a possible tarsal tunnel syndrome on the right. At a February 1998 VA neurology examination, the appellant reported that he had sustained some ankle trauma in 1988 when he disengaged his foot from some type of machinery in an attempt to answer the telephone. Two years after this episode, he awoke with severe pain in his right ankle. The appellant reported that tomograms of the ankle as well as a magnetic resonance imaging [MRI] scan were normal or negative. The appellant complained of pain in the right ankle area and occasional numbness in the right foot. The examiner noted that some local tenderness to percussion was present in the right tarsal tunnel, although it did not produce any shock-like feeling extending to the foot. Gait and stance were normal. Nerve conduction studies for the right lower extremity, looking for tarsal tunnel syndrome, showed normal values. In a July 1998 statement, the appellant stated that his right ankle was constantly painful. He stated that, after sitting down or working all day, he had difficulty walking and driving. He complained also of occasional weakness in the ankle. II. Analysis The appellant has presented a well-grounded claim for a higher disability evaluation on appeal from the initial grant of service connection within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the RO provided a VA examination to the appellant. There is no indication of additional medical records that the RO failed to obtain. Therefore, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). This appeal being from the initial rating assigned to a disability upon awarding service connection, the entire body of evidence is for equal consideration. Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where an increased rating is at issue, the present level of the disability is the primary concern). Such staged ratings are not subject to the provisions of 38 C.F.R. § 3.105(e), which generally requires notice and a delay in implementation when there is proposed a reduction in evaluation that would result in reduction of compensation benefits being paid. Fenderson, 12 Vet. App. at 126. The RO did not specifically consider staged ratings. Before the Board may execute a staged rating of the appellant's disability, it must be determined that there is no prejudice to the appellant to do so without remand to the RO for that purpose. Bernard v. Brown, 4 Vet. App. 384, 389 (1993). As the regulations and rating criteria to be applied are the same, and as the Board decision herein is favorable to the appellant, the Board finds no prejudice to the appellant in considering the issue as one of entitlement to a higher rating on appeal from the initial grant of service connection. The RO, in effect, considered whether the facts showed that the veteran was entitled to a higher disability rating for this condition for any period of time since his original claim. The appellant has been provided appropriate notice of the pertinent laws and regulations and has had his claim of disagreement with the original ratings properly considered based on all the evidence of record. In the particular circumstances of this case, the Board sees no prejudice to the veteran in recharacterizing the issue on appeal to properly reflect his disagreement with the initial disability evaluation assigned to his service-connected right calcaneal bone spur. It would be pointless to remand the veteran's claim in order to instruct the RO to issue a SSOC that correctly identified the issue on appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The appellant is currently evaluated as noncompensably disabled for residuals of a right ankle injury under 38 C.F.R. § 4.71a, Diagnostic Code 5271. During service, he injured his right ankle, and any residuals from this type of injury do not have specific diagnostic codes under the Schedule. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. 38 C.F.R. § 4.27 (1999). Therefore, the service-connected right ankle injury is rated based on the residual condition of limited motion of the ankle under Diagnostic Code 5271. Utilizing the rating criteria, moderate limitation of motion of the ankle is assigned a 10 percent disability rating. Marked limitation of motion is assigned a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1999). In every instance 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 (1999). A normal range of motion for the ankle by VA standards is from 0 degrees to 20 degrees in dorsiflexion, and from 0 degrees to 45 degrees in plantar flexion. See 38 C.F.R. § 4.71, Plate II (1999). At the February 1998 VA orthopedic examination, the examiner noted that the appellant had range of motion of his right ankle from 10 degrees of dorsiflexion to 40 degrees of plantar flexion. The examiner noted also that the appellant reported increased pain on use of the ankle. The appellant has stated that his ankle pain worsens following prolonged sitting or prolonged standing and that he occasionally lacks coordination of his ankle movements. The limitation of motion of the veteran's ankle shown on examination was mild at most. It did not amount to the moderate limitation of motion required to support a 10 percent evaluation. However, in determining the appropriate rating, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) held that, in evaluating a service-connected disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that diagnostic codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (1999). A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca, 8 Vet. App. 202 (1995). In this case, the appellant experiences minimal limitation of motion. On examination, he had no gait abnormalities, and no redness, heat, or swelling in the right ankle. He reported being able to walk and jog without particular problems, although he had given up playing volleyball. His complaint is pain, and he reports that he has increased problems with disuse of the ankle (i.e., after sitting all day, he had difficulty driving or walking). The Board finds that, while this is not evidence of increased functional loss with use, it is evidence of increased loss of function due to a flare- up of the condition. Accordingly, in recognition of the veteran's potential for increased functional loss due to pain with disuse, the evidence supports granting an evaluation of 10 percent, and no more, equivalent to moderate limitation of motion of the right ankle. There is no evidence to support a finding that the veteran has marked limitation of motion. Neither VA examination showed indications of instability or of swelling, redness, or impaired gait. There is no evidence on which to conclude that use or disuse of the ankle would produce such marked limitation. Consideration has been given to other potentially applicable diagnostic codes. The x-ray evidence has not yielded a diagnosis of arthritis, so a rating pursuant to Diagnostic Code 5003 (degenerative arthritis) or Diagnostic Code 5010 (traumatic arthritis) is not appropriate. Even if arthritis had been shown on x-ray, the rating criteria provide that arthritis is to be rated on the basis of limitation of motion of the joint involved. As the veteran's right ankle disability is already evaluated on the basis of limitation of motion, those same symptoms could not be evaluated under Diagnostic Codes 5003 or 5010 without violating the prohibition against evaluating the same disability under different diagnoses. See 38 C.F.R. § 4.14 (1999). There is no medical evidence showing ankylosis of the ankle or of the subastragalar or tarsal joint; therefore, an evaluation under Diagnostic Code 5270 or 5272 is not appropriate. Furthermore, there is no evidence of deformity due to malunion of the os calcis or astragalus, or evidence of an astragalectomy, so as to warrant an increased rating under Diagnostic Code 5273 or 5274. 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274 (1999). The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the current level of the appellant's disability in his favor. However, there is no reasonable doubt on this matter. ORDER Entitlement to a disability rating of 10 percent, but no higher, for residuals of right ankle injury is granted. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals