Citation Nr: 0000371 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-07 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Cheyenne, Wyoming THE ISSUE Entitlement to a disability rating in excess of 30 percent for traumatic degenerative changes of the left foot and ankle. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from January 1942 to July 1943. This matter comes to the Board of Veterans' Appeals (Board) from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO assigned a temporary total disability rating from December 29, 1997 to March 1, 1998, and denied entitlement to a disability rating in excess of 30 percent effective March 1, 1998. The veteran has perfected an appeal of the denial of a disability rating in excess of 30 percent. FINDING OF FACT The left foot disorder is manifested by significant degenerative changes, limitation of motion, and instability, pain and weakness that increases with use and prohibits ambulation without the use of assistive devices, no movement of the left ankle on inversion or eversion, and an adduction deformity of the foot. CONCLUSION OF LAW The criteria for a 40 percent rating for traumatic degenerative changes of the left foot and ankle are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5003, 5010, and 5270 (1999). (continued on next page) REASONS AND BASES FOR FINDING AND CONCLUSION I. Criteria Disability ratings are based on the average impairment of earning capacity resulting from disability. The percentage ratings for each diagnostic code, as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R. Part 4, represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40. The factors of disability effecting joints are reduction of normal excursion of movements in different planes, including less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. For the purpose of rating disabilities due to arthritis, the shoulder, elbow, wrist, hip, knee and ankle are considered major joints, multiple involvements of the interphalangeal, metacarpal, and carpal joints of the upper extremities, the interphalangeal, metatarsal, and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. 38 C.F.R. § 4.45. Traumatic arthritis is to be evaluated as degenerative arthritis. Degenerative arthritis is to be evaluated based on the limitation of motion of the joint. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If the joint is affected by limitation of motion but the limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent rating applies for each such major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 10 percent rating applies for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating applies for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Diagnostic Code 5271 for limitation of motion of the ankle provides a 10 percent rating if the limitation is moderate, and a 20 percent rating if the limitation is marked. 38 U.S.C.A. § 4.71a. The normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5270 for ankylosis of the ankle provides a 40 percent rating for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with an abduction, adduction, inversion or eversion deformity. A 30 percent rating applies for ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. If the ankle is ankylosed in plantar flexion of less than 30 degrees, a 20 percent rating applies. 38 C.F.R. § 4.71a. For other foot injuries, a 10 percent rating is assignable if the disability is moderate, a 20 percent rating if moderately severe, or a 30 percent rating if severe under Diagnostic Code 5284. The residuals of a foot injury are rated at 40 percent when there is actual loss of use of the foot. 38 C.F.R. § 4.71a. The evaluation of the level of disability is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Factual Background The report of an October 1994 VA examination shows that the veteran had been born with some foot deformity, but that he had had no real problems with it before in-service injuries occurred. An X-ray study confirmed the congenital deformities, including foreshortening of the os calcis. In addition, examination of the left ankle showed limited range of motion with zero degrees of subtalar motion, 15 degrees of dorsiflexion and five degrees of plantar flexion, and some mild swelling. The physician described mild degenerative changes in the left foot and ankle as a result of the in-service injuries with limited range of motion. The physician also stated that there was moderate loss of motion in the left ankle and marked loss or almost ankylosis of the subtalar joint of the left foot. VA treatment records show that in January 1996 the veteran was seen for pain after slipping on snow, having twisted the left foot and ankle, which was diagnosed as a sprain. X-rays showed lateral and inferior subluxation of the first proximal phalanx in relation to the head of the first metatarsal, associated with considerable sclerosis of the articular margins suggesting a chronic deformity. There was also generalized osteoporosis but no sign of acute fracture. A report from a podiatrist in February 1996 indicates that the veteran had a history of chronic and severe arthritic ankle pains of the left foot. On initial examination, there was noted swelling and tenderness of the ankle on palpation. Dorsalis and pedis pulses were not palpable. The podiatrist stated that the veteran had been having so much pain that he could barely walk. An X-ray study showed dorsal lipping of the talo-navicular articulation and hyperostosis of the talus. In February 1996 the podiatrist performed surgery on the left foot and ankle, including removal of the arthritic growth. The treatment records indicate that the foot could be flexed more easily after the surgery. On VA examination in November 1996, the veteran described having sustained multiple fractures of his left foot in service. He reported a gradual worsening of pain in the left foot, heel, and ankle following the February 1996 surgery, to the point that it ached almost all of the time. He had particular pain in the heel and ankle on weight bearing. He found that the foot tended to tilt inward, for which he had been using a lace-up ankle brace. He had also started using a cane, which helped decrease the pain, and he had been wearing high-top shoes in order to provide ankle support. The veteran reported that ambulation was becoming increasingly difficult, and that he had to stop and get off his feet due to pain if he walked one mile, whereas he previously could have walked miles. He was taking no medication. On examination, there was a decrease in size of the left forefoot heel compared to the right. The left great toe was pointed in a varus manner and the third toe of the left foot was a hammertoe. Pedal pulses were normal and there was no edema. Over the dorsal aspect of the left foot there was a six centimeter well-healed, non-tender scar. The left foot had zero degrees of dorsiflexion and 20 degrees of plantar flexion. An X-ray study confirmed degenerative disease, valgus deformity, and degenerative changes. The examiner stated that the ankle seemed stable to stressing. The veteran was noted to have a noticeable limp on leaving the examination. In December 1997 the veteran was seen as a VA outpatient with complaints of significantly increased pain, which he had been treating with increasing amounts of padding and shoe inserts without improvement. Before getting to the examining room he fell in the hall and had to be assisted. On examination, there was increased pain on any weight bearing on the left heel. The findings included decreased distal and proximal responses of the ankle, no movement on inversion or eversion, and that the left forefoot was adducted. The examiner noted that the veteran had a history of plantar exostosis as well as other foot deformities. X-rays and examination revealed a palpable plantar exostosis on the central aspect of the calcaneus, causing pain in the area on weight bearing. The veteran was taken to surgery where the exostosis was reduced. Postoperatively he was give a special shoe, crutches, and pain medication. In January and February 1998 the veteran reported decreased pain and better walking using crutches and other devices. The surgical area was said to be well healed. A February 1998 treatment record indicates that the veteran had been going to the podiatry clinic for several months. The treating physician stated that he had a history of markedly damaged left ankle and foot related to an ankle fracture in service. He had had multiple problems with the left foot and ankle since then, which had been thoroughly documented on X-rays showing deformities and healing fractures. The calcaneus had tissue pain in the area. His ankle gave way frequently and he wore an ankle brace. The physician described the left foot as being several sizes smaller than the right, all of which he attributed to the in- service injury. The treating physician reviewed the X-ray studies that showed that the veteran had an unusually high arch and dystrophic calcifications adjacent to the plantar surface of the calcaneus and within the heel pad, without signs of erosion of the cortex. An X-ray study in March 1998 showed the resection of the calcaneal spur at the plantar aspect and a linear calcification, which had also been present in January. The treating physician found that there was a 50 percent medial subluxation of the first proximal phalanx in relation to the head of the first metatarsal, flattening of the articular surfaces, narrowing, and sclerosis. The second, third, fourth, and fifth digits all showed chronic medial deviation. The impression was postoperative changes at the calcaneus; calcification versus bone fragment in the soft tissues plantar to the posterior calcaneus; and first metatarsophalangeal (MTP) joint displacement, unchanged from January. Also in March 1998, the veteran reported continuing left heel pain. The physician replaced the ankle brace and prescribed crutches, a walker, and an air brace. In April 1998 the veteran complained of continuing pain that awakened him at night, which he claimed to have had for 30 years but was becoming worse. He also reported that the left ankle would fall away in spite of the new ankle air brace he had been given. He was not sleeping due to increased pain and he also noted loss of function. The examiner described three points of maximum pain on the plantar surface of the foot. Later that month the veteran reported that the heel was very painful. The physician found that the left foot was atrophied, as were the muscles in the leg. On examination, the area was very tender. The physician assessed the complaints and clinical findings as subtalar degenerative joint disease. During an outpatient visit in May 1998 the veteran complained of pain in the foot since the surgery, and the development of a shooting pain to the ball of his foot from the heel. He was using crutches for ambulation and had a soft foam pad in the heel of his shoe, which he said helped tremendously. Vascular examination showed the foot was warm although pedal pulses were 2+/4, left and right. The digits one through five were all adducted, and there was decreased plantar fascia under the calcaneus. The examiner found a dorsal cicatrix over the greater tarsus and another at the plantar medial heel. The podiatrist suggested that the veteran might have questionable nerve entrapment or neuroma, status post operatively, from the infra-calcaneal exostosectomy. The podiatrist provided a one-quarter inch felt horseshoe pad for the heel and scheduled an exploratory surgery in June 1998. As an addendum, the podiatrist noted that X-rays had confirmed the presence of a one-centimeter spicula with bone protruding from the plantar calcaneus. At the personal hearing held in June 1998, the veteran testified that he had functional loss and pain on a continuous basis. He stated that in addition to the pain, his leg would go one way and his ankle the other when he stepped on the foot, which was why he had to use crutches all of the time. He also stated that he was no longer able to walk very far, and could not stand on his feet more than 30 minutes without pain and having to get off the leg right away. He testified that he had been prescribed a brace and physical therapy, but that neither worked. He also testified that he had again fallen, even when visiting his physician, and that he used the crutches all of the time to prevent falls. III. Analysis Initially the Board finds that the veteran's claim of entitlement to an increased evaluation for his left ankle and foot disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a) and the relevant case law; that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990), see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed to their full extent and that VA has met its duty to assist the veteran in developing the facts of his case. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The Board notes that when service connection for the left foot disorder was established in March 1995, the disability was evaluated under Diagnostic Codes 5010 for traumatic arthritis and the corresponding Diagnostic Code 5271 for limitation of motion of the ankle. With the assignment of the 30 percent rating in April 1997, the RO evaluated the disability under Diagnostic Code 5284 for other injuries of the foot, because the 20 percent rating assigned in March 1995 is the highest rating available under Diagnostic Code 5271. Under Diagnostic Code 5284, entitlement to a disability rating in excess of 30 percent requires evidence showing loss of use of the foot. 38 C.F.R. § 4.17a. Although it is unclear from the evidence of record whether the veteran has, in fact, lost the use of the left foot as defined by 38 C.F.R. § 3.350, for the reasons shown below the Board finds that remand of the case for additional development is not warranted. In appraising the veteran's residual left ankle and foot problems, it is noted that he has had repeated surgical procedures which have not been entirely successful in alleviating his symptoms. He has continued to have significant pain and limitation of function after the surgery. He is required to use various appliances, including a walker, a cane and/or crutches, and foam padding and other protective devices within his shoes, and he continues to have significant functional limitation in the left foot. The treating physician found objective evidence of considerable atrophy in the left leg and foot. The Board finds, therefore, that the veteran's complaints of pain and weakness in the left foot and ankle are credible. See Baldwin v. West, 13 Vet. App. 1 (1999) (the Board must analyze the credibility of the evidence). The left foot disorder is manifested by significant degenerative changes, limitation of motion, and instability, and pain and weakness that increase with use and prohibit ambulation without the use of assistive devices. In addition, the treating physician in December 1997 found no movement of the left ankle on inversion or eversion and an adduction deformity of the foot. Traumatic arthritis is to be rated as degenerative arthritis, based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Ankylosis is defined as stiffening or fixation of a joint as the result of a disease process. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th Ed.)). The Board finds, therefore, that the left ankle and foot disability is properly evaluated under Diagnostic Code 5270 for limited motion of the ankle or 5271 for ankylosis of the ankle. The Board notes that none of the diagnostic codes pertaining to the foot apply specifically to limitation of motion. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (in selecting a diagnostic code the Board must explain any inconsistencies with previously applied diagnostic codes). In accordance with Diagnostic Code 5270, a 40 percent rating applies for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with an abduction, adduction, inversion or eversion deformity. Because the evidence shows that the left ankle is ankylosed in terms of inversion and eversion, and there is a fixed adduction deformity of the left foot, the Board finds that the criteria for a 40 percent rating pursuant to Diagnostic Code 5270 are met. The evaluation of a musculoskeletal disability requires consideration of all of the functional limitations imposed by the disorder, including pain, weakness, limitation of motion, and lack of strength, speed, coordination or endurance. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). The evidence clearly shows that the veteran has significant limitation of function of the left foot. He has, however, been granted the maximum schedular rating available for a disability of the foot or ankle, and the consideration of an additional rating based on the limitation of function is not warranted. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board notes that if the veteran has compensable limitation of motion of a joint caused by arthritis, including limitation of motion due to pain, and he also has instability of the joint, he may be entitled to separate disability ratings for the limitation of motion and the instability if the joint can be rated based on instability. VAOPGCPREC 23-97. There is, however, no diagnostic code pertaining to the ankle or foot that includes instability as one of the stated criteria for rating the disability. In addition, he has been granted a 40 percent rating, which is the rating available for amputation of the foot, and the combined rating for his foot and ankle disability cannot exceed 40 percent. 38 C.F.R. § 4.68. According to Diagnostic Code 5003, a minimum 10 percent rating applies for X-ray evidence of arthritis in a major joint. A 40 percent rating is currently in effect for the left ankle and foot disorder. The Board finds, therefore, that the application of the provisions of Diagnostic Code 5003 does not result in a higher disability rating. See Hicks v. Brown, 8 Vet. App. 417 (1995). A disability rating in excess of the minimum schedular rating for the joint, which is 10 percent, has been assigned under Diagnostic Code 5270. The consideration of an increased rating based on the provisions of 38 C.F.R. § 4.59 is not warranted, since the veteran is in receipt of more than the minimum compensable evaluation for arthritis of the ankle. The Board has determined, therefore, that the preponderance of the evidence is against entitlement to a disability rating in excess of 40 percent. Shoemaker v. Derwinski, 3 Vet. App. 248, 253 (1992) (in granting an increased rating, the Board must explain why a higher rating is not warranted). An increased rating could apply if the case presented an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular criteria. 38 C.F.R. § 3.321(b)(1). Although the veteran has been hospitalized for the treatment of his left foot and ankle disorder, he was awarded temporary total disability ratings for those hospitalizations and convalescence in accordance with 38 C.F.R. §§ 4.29 and 4.30. The evidence also indicates that the veteran is retired from employment, and does not indicate that the functional limitations of his left foot and ankle disorder have affected his employment beyond that contemplated by the 40 percent rating that has been assigned. In short, there has been no showing that the application of the regular schedular criteria is impractical. The Board finds, therefore, that remand of the case to the RO for referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extra-schedular rating is not appropriate. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). ORDER Entitlement to a disability rating of 40 percent for traumatic degenerative changes of the left foot and ankle is granted, subject to the regulatory criteria relating to the payment of monetary awards. N. W. Fabian Acting Member, Board of Veterans' Appeals