Citation Nr: 0006179 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 97-10 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to the assignment of a compensable evaluation for the residuals of a right foot navicular fracture. 3. Entitlement to the assignment of a higher evaluation for traumatic degenerative changes of the right ankle, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.D. Jackson, Counsel INTRODUCTION The veteran had active service from July 1980 to September 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The veteran appealed the initial assignment of a noncompensable evaluation for a right foot disability and 10 percent evaluation for a right ankle disability. The Board notes that the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter the Court), in Fenderson v. West, 12 Vet. App. 119 (1999) held, in part, that the RO never issued a statement of the case concerning an appeal from the initial assignment of a disability evaluation, as the RO had characterized the issue in the statement of the case as one of entitlement to an increased evaluation. Fenderson involved a situation in which the Board had concluded that the appeal as to that issue was not properly before it, on the basis that a substantive appeal had not been filed. This case differs from Fenderson in that the appellant did file timely substantive appeals concerning the initial rating to be assigned for the disabilities at issue. The Board observes that the Court, in Fenderson, did not specify a formulation of the issue that would be satisfactory, but only distinguished the situation of filing a notice of disagreement following the grant of service connection and the initial assignment of a disability evaluation from that of filing a notice of disagreement from the denial of a claim for increase. Moreover, the appellant in this case has clearly indicated that what he seeks is the assignment of higher disability evaluations. Consequently, the Board sees no prejudice to the veteran in either the RO's characterization of the issues or in the Board's characterization of the issues as entitlement to the assignment of higher disability evaluations. See Bernard v. Brown, 4 Vet. App. 384 (1883). Therefore, the Board will not remand this matter solely for re-characterization of the issues in a new statement of the case. FINDINGS OF FACT 1. The record does not contain competent evidence of a nexus between a current right knee disability and injury or disease during the veteran's active service. 2. The right foot disability is manifested primarily by subjective complaints of pain and weakness, and is productive of no more than slight disability. 3. The right ankle disability is manifested primarily by pain with subjective complaints of weakness and no more than moderate limitation of dorsiflexion and normal plantar flexion, and is productive of no more than moderate disability. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well- grounded claim for service connection for a right knee disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The criteria for a compensable rating for the residuals of a right foot navicular fracture, are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.40, Part 4, Diagnostic Code 5284 (1999). 3. The criteria for a rating in excess of 10 percent for residuals of a right ankle injury are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.20, 4.59, Part 4, Diagnostic Codes 5010, 5262, 5270, 5271, 5272, 5273, 5274, (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The law provides that a veteran is entitled to service connection for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). However, the Board must initially determine whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107(a). A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). To establish that a claim for service connection is well grounded, a veteran must demonstrate the incurrence or aggravation of a disease or injury in service, the existence of a current disability, and a nexus between the in service injury or disease and the current disability. See Epps v. Gober, 126 F.3d 1464 (1997). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to prove service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, a claimant may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where evidence, regardless of its date, shows that an appellant had a chronic condition in service or during an applicable presumption period, and that that same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this case, presuming the truthfulness of the evidence for the purpose of determining whether a claim is well grounded, as required by Robinette v. Brown, 8 Vet. App. 69, 73-74 (1995), and King v. Brown, 5 Vet. App. 19, 21 (1993), for the reasons stated below, the record fails to establish that the veteran's claim is plausible. The veteran claims that he developed a degenerative disorder of the right knee during military service. He points out that he received treatment for his right knee on several occasions during service. He relates that the most damaging injury to his knee occurred in Saudi Arabia when he fractured his ankles. He maintains that as a result of his injuries and military duties, he eventually developed a degenerative disease of the right knee within the last few years. In regard to the first element of Caluza, evidence of a current disability, an April 1995 VA radiological study revealed degenerative osteoarthritis of the right knee joint. In December of that year, the veteran underwent arthroplasty with right partial meniscectomy. This satisfies the first element of Caluza. Concerning the second requirement, that is, evidence of disease or injury in service, the veteran's service medical records relate that he was treated on two occasions for right knee pain. In August 1980, he complained of right knee pain. There was no pain on palpation, point tenderness, edema or instability. He was given aspirin and advised to apply heat. The diagnosis was a probable sprain. The next month, he reported improvement and the diagnosis was resolving strain. In August 1982, he complained of right knee pain. He also indicated that there was no trauma. On examination, there were no abnormal findings reported. Further, the radiological studies were normal. In January and February 1991 the veteran reported bilateral ankle and right knee pain. At his July 1991 separation examination, he reported right knee pain, however, no abnormal physical findings were noted. The veteran's initial post service VA examination including X-ray conducted in October 1991 failed to find any abnormalities regarding the right knee. "Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of Section 5107(a); where the determinative issue does not require medical expertise, lay testimony may suffice by itself." Godfrey v. Brown, 7 Vet. App. 398, 405 (1995). After reviewing the evidence, the Board observes that there is no competent (i.e., medical) evidence suggesting that the veteran's current chronic right knee condition is related to an injury in service or otherwise had its origin during the veteran's period of active military service. The only medical evidence of record fails to indicate that there is a nexus or relationship. The Board has considered the provisions of 38 C.F.R. § 3.303(b), but finds that the veteran has not established that a chronic medical condition existed in service or during an applicable presumptive period thereafter. Service medical records do not show a chronic condition, and private and VA records do not show that a chronic condition existed in service. The veteran's lay statements are not competent medical evidence to establish that his present right knee disorder is the same disability for which he was treated in service. Savage, 10 Vet. App. at 495-498. Although there was an incident of documented right knee pain during service and the veteran has reported chronicity of symptomatology, there is no competent evidence relating the present back condition to that symptomatology. Ibid. The Board notes that the Court has held that lay testimony is not competent to prove a matter requiring medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93, 95 (1993); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Clarkson v. Brown, 4 Vet. App. 565, 567 (1993). It is the province of trained health care professionals to enter conclusions which require medical opinions as to causation, Jones v. Brown, 7 Vet. App. 134, 137 (1994), and, since he has no medical expertise, the lay opinion of the veteran does not provide a basis upon which to make any finding as to the origin or development of his condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). The only medical opinion of record is from a VA physician who evaluated the veteran's medical history and examined his right knee in June 1999. He concluded that the current right knee disability was unrelated to his inservice injury. Without competent supporting medical evidence, the veteran's claim of entitlement to service connection for a chronic right knee condition is not well grounded and must be denied on that basis. Where a claim is not well-grounded it is incomplete, and depending on the particular facts of the case, VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. See Robinette v. Brown, 8 Vet.App. 69 (1995). In this case, the RO substantially complied with this obligation in its statement of the case. Moreover, this Board decision informs the veteran of the evidence that is lacking to make his claim well grounded. Unlike the situation in Robinette, he has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claim well grounded. II. Increased Rating The veteran's claims for higher ratings for his service-connected right foot and right ankle residuals are "well grounded" 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, 224 (1995). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). The evaluation assigned for a service-connected disability is established by comparing the manifestations reflected by the recent medical findings with the criteria in the VA's SCHEDULE FOR RATING DISABILITIES (SCHEDULE), codified in C.F.R. Part 4 (1999). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Service medical records show a statement written by the veteran on clinical documentation dated in January/February 1991. He reported that he hurt his ankles and knees due to walking on too many rocks in Saudi Arabia. In June 1991, the veteran complained of left ankle pain. He indicated that he fell while stationed in Saudi Arabia 2 months previously. He was scheduled for podiatry examination. The podiatry examination report dated in July 1991 indicates that his right foot was examined. The diagnostic assessment was ligamentous sprain deltoid leg/tendon strain of the medial right foot and possible navicular fracture. Medical notes dated in August 1991 show that he continued his complaints regarding the left heel and right ankle. A bone scan report contains a diagnostic impression that included degenerative changes of the right ankle, possible tendinitis in the left calcaneus, and increased focal uptake in the right navicular. The examiner recommended clinical correlation for questionable posttraumatic change versus degenerative changes. The report of the initial post service VA examination in October 1991 shows that the veteran's feet were negative for erythema, swelling, tenderness or deformity. He had full range of motion of both ankles. The examiner reported a diagnosis that included bilateral degenerative joint disease of the feet and ankles, but the X-ray report indicates that there was no significant joint or bone abnormality. The report of a March 1995 VA examination indicates that the veteran was able to walk without a cast. The gait was normal. There was 1-centimeter swelling of the right mid foot at the medial tarsal area. He was able to walk on his toes and heels. There was crepitance on shifting. The ranges of motion of the right ankle were eversion and inversion, 10 degrees; dorsiflexion, 15 degrees; and plantar flexion, 25 degrees. There was normal strength. It was noted that a March 1993 X-ray revealed small plantar spurs in each calcaneus. A July 1993 X-ray revealed 2 small pieces of bone adjacent to the medial aspect of navicular tarsal bone. This was considered secondary to an old traumatic event. Based on in-service treatment and the VA examinations, a September 1995 rating decision granted service connection for the residuals of a right foot navicular fracture and assigned a noncompensable evaluation. Service connection was also granted for traumatic degenerative changes of the right ankle and a 10 percent disabling evaluation was assigned. A. Right Foot Under Diagnostic Code 5284, foot injuries, a rating of 10 percent is assigned for disabilities of the feet that are moderate. A 20 percent evaluation is assigned for moderately severedisability, and a 30 percent rating is assigned for severe disability. It is clear from the VA treatment and examination of the veteran's foot, that moderate disability of the right foot is not demonstrated. The veteran's primary complaint, as can be seen in the VA examination reports, is of right foot pain after prolonged standing or walking. At the April 1997 VA examination, the veteran described his pain as discomfort. He reported that stabbing type pain occurred when walking more than an hour. The pain was located in the middle aspect of the right foot and at times radiated to the medial aspect. The Board must discuss the impact of pain and other factors as set forth in 38 C.F.R. §§ 4.40 and 4.45, that is, pain on motion, incoordination, weakened movement, excess fatigability, or any of the other factors articulated in 38 C.F.R. § 4.45. These include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon- tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); impaired ability to execute skilled movements smoothly; and swelling, deformity or atrophy of disuse. If the veteran experiences any of these factors, the Board is to discuss whether any of these factors entitle the veteran to a compensable rating under any of the diagnostic codes in the rating schedule. Under 38 C.F.R. § 4.40 functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior on motion. Weakness is as important as limitation of motion, and a part, which becomes painful on use must be regarded as seriously disabled. The functional limitations due to pain must be accounted for in the disability evaluation. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board is obligated to take the veteran's reports of painful motion into consideration. 38 C.F.R. § § 4.40, 4.45 (1999). The record does not show that the veteran experiences incoordination, weakened movement, or excess fatigability due to his right foot. At the October 1995 and April 1997 VA examinations, the right foot appeared normal and there was normal mobility. He was able to supinate, pronate and rise on his heels and toes without problems. Although the veteran reported that he experienced swelling, the medical evidence does not confirm this. The record does not reflect that the veteran has alleged or shown impaired ability to execute skilled movements smoothly, deformity, or atrophy of disuse. It has not been shown that the veteran's disability interferes with his gait or his ability to stand and squat. While the veteran has reported severe residuals, examination has not revealed edema, swelling, acute heat or other physical findings indicative of moderate residuals. VA outpatient records dated between late 1995 and 1996 show that the veteran attended physical therapy sessions for his right knee disability. He also reported right foot pain at these sessions. For the most part, there were no reported abnormal physical findings in regard to the right foot. In June 1996, he had full range of motion of the ankle and toes. He had at least 3/5 strength in the toes. In July 1996, there was no swelling or tender points. The appellant is competent to report his symptoms. At the February 1997 hearing, he testified that he experienced pain and swelling in his feet every day. He stated that he was a prevention manager, which required standing and walking throughout the day. Although he reported constant and substantial pain, his testimony is not supported by the medical evidence, and does not serve to warrant a separate, compensable evaluation for his right foot. Mere subjective complaints of foot pain without pathology or objective evidence of the presence of pain do not warrant a compensable evaluation. As residual physical findings are not shown, even with consideration of 38 C.F.R. §§ 4.7 and 4.40 (1999), a separate, compensable evaluation for disability associated with the right foot is not warranted. Incidentally, it is noted that private and VA electromyographic (EMG) studies were conducted in 1996 and 1997. The November 1996 private EMG report reflects right superficial peroneal neuropathy and bilateral tarsal tunnel syndrome. The VA conducted EMG studies in March 1997. A clinical entry indicates that the veteran had two EMG's -- one positive and the other negative. While there may or may not be neurological defects associated with the veteran's right foot, it has not been shown by medical evidence that this is related to his service connected right foot disability. He is not currently service connected for such a disability and that issue will not be discussed in the current case. B. Right Ankle The severity of a disability from a sprain of the right ankle is is rated by application of the criteria in Diagnostic Code 5271. Under Diagnostic Code 5271, limitation of motion in an ankle is rated 20 percent when marked and 10 percent when moderate. Under Diagnostic Code 5010, disability of a joint due to post-traumatic arthritis is rated based on limitation of motion of the joint. Normal range of motion in an ankle is considered to be 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II (1999). Other diagnostic codes relate to the ankle. Impairment of the tibia and fibula of either leg warrants a 10 percent evaluation when the disability results in malunion with slight knee or ankle disability. A 20 percent evaluation requires that the malunion produce moderate knee or ankle disability. 38 C.F.R. § 4.71a, Code 5262. Further, a rating greater than the 10 percent rating now assigned is warranted for ankylosis of the ankle (Diagnostic Code 5270); marked limitation of motion of the ankle (Diagnostic Code 5271); ankylosis of the subastragalar or tarsal joint in poor weight bearing position (Diagnostic Code 5272), malunion of os calcis or astragalus with marked deformity (Diagnostic Code 5273); and for astragalectomy (Diagnostic Code 5274). As the evidence does not show malunion of the os calcis or astragalus, Diagnostic Code 5273 is not applicable. Likewise Diagnostic Codes 5274, 5270 and 5272 are not applicable as the evidence does not show an astragalectomy of the right ankle or ankylosis of the ankle, or of the subastragalar or tarsal joint. Considering Diagnostic Code 5010 (arthritis), 5262 (impairment of the tibia and fibula) and 5271 (limited motion of the ankle), I note that a VA bone scan report in August 1991 shows an assessment of degenerative changes of the right ankle. A higher rating under the criteria for arthritis would require marked limitation of ankle motion under Diagnostic Code 5271. The VA examiner in April 1997 noted that the right ankle strength and range of motion could not be measured adequately due to the veteran's resistance to movement. There was minimal joint effusion. While the veteran refused range of motion studies it was also noted that that there was no swelling of the ankle, sensory deficit or muscle atrophy. In October 1995, dorsiflexion was 7 degrees and plantar flexion was 45 degrees. There was no swelling, instability, deformity or tenderness on palpation. The March 1995 VA examination reported right ankle motion as dorsiflexion of 15 degrees and plantar flexion of 25 degrees, with eversion and inversion of 10 degrees. The ankle strength was considered normal. Such a disability picture is not viewed as indicative of moderate functional impairment of the ankle as contemplated under Code 5262, or marked limitation of motion required under Code 5271. Additionally, I note that the veteran complains of increased right ankle pain. As noted, the rating schedule is intended to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimal compensable rating for a joint. The veteran is currently entitled to a 10 percent rating for his right ankle, which is the minimal compensable rating for the ankle. The recorded complaints of pain do not equate to moderate functional impairment or marked limitation of motion of the ankle. Consequently, the schedule does not support an increased rating on this basis. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.20, 4.59, Part 4, Diagnostic Codes 5010, 5262, 5271 (1999). In conclusion, the Board finds that the preponderance of the evidence is against the veteran's claims for higher evaluations for right foot and right ankle disabilities. In reaching this decision, the Board has considered the doctrine of reasonable doubt; as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has considered whether extra-schedular evaluations pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) are warranted. In the instant case, however, there has been no assertion or showing that the disabilities under consideration have caused marked interference with employment, necessitated frequent periods of hospitalization or otherwise renders impracticable the application of the regular schedular standards. In the absence of such factors, the Board determines that the criteria for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237, 239 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for a right knee disability is denied. The assignment of a compensable evaluation for a right foot disability is denied. The assignment of a higher evaluation for a right ankle disability is denied. MARY GALLAGHER Member, Board of Veterans' Appeals