Citation Nr: 0003640 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-08 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an increased rating for residuals of right ankle sprain with traumatic arthritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from October 1954 until August 1956. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of May 1998 from the Des Moines, Iowa Regional Office (RO) which denied an increased evaluation for the service-connected right ankle disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. Residuals of right ankle sprain with traumatic arthritis are manifested by no more than moderate limitation of motion of dorsiflexion to 10 degrees, and plantar flexion to 40 degrees, with complaints of pain on motion, weakness, and instability. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 10 percent for residuals of right ankle sprain with traumatic arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5271 (1999); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for right ankle sprain was granted by rating action dated in January 1957, and a noncompensable evaluation was assigned. By rating decision of August 1993, the zero percent evaluation was increased to 10 percent with recognition of traumatic arthritis as part and parcel of the service-connected disability. The noncompensable evaluation was confirmed by a Board decision in August 1995. The appellant most recently submitted a reopened claim for an increased rating in this regard in March 1998. The veteran asserts that the symptoms associated with his service-connected right ankle disorder have increased in severity and are more severely disabling than reflected by the currently assigned disability evaluation. He contends that the right ankle is always painful, swells upon use, and that it gives way frequently causing him to fall. The veteran's accredited representative avers that the provisions of VAGCOPPREC 9-98 (Aug. 14, 1998) are for application in this case and that separate 10 percent evaluations should be granted under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 and 5271. The Board finds that the veteran's claim for an increased rating for the service-connected right ankle disorder is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Here, the veteran's claim is well grounded because he has a service-connected disability and evidence is of record that he claims shows exacerbation of the disorder. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The Board finds that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable laws and regulations, disability evaluations are determined by applying the criteria set forth in the VA's 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 service-connected 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. The history of a disability must be considered. See 38 C.F.R. §§ 4.1, 4.2. However, where entitlement to compensation has already been established and an increase in a disability rating is at issue, as in the instant case, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Where there is a question as to which of two evaluations applies to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (1999). Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (1999). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Such 10 percent evaluation is combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999). For the purpose of rating disability from arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45 (1999). Moderate limitation of motion of either ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. § 4.71a. Diagnostic Code 5271. Ankylosis of either ankle warrants a 20 percent evaluation if the ankle is fixed in plantar flexion at an angle of less than 30 degrees. A 30 percent evaluation requires that the ankle be fixed in planter flexion at an angle between 30 degrees and 40 degrees or in dorsiflexion at an angle between 0 and 10 degrees. Ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity, warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (1999). In cases where a diagnostic code provides for compensation based solely upon limitation of motion, the provisions contained in 38 C.F.R. §§ 4.40 and 4.45 must be considered. Further, the United States Court of Veterans Appeals (Court) has held that, in addition to due consideration of these diagnostic codes, examinations upon which the rating codes are based must adequately address the extent of the functional loss due to pain "on use or during flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). If a musculoskeletal disability may be rated under a specific diagnostic code that does not involve limitation of motion and another diagnostic code based on limitation of motion may be applicable, both diagnostic codes must be considered. The medical nature of the specific disability to be rated under a particular diagnostic code determines whether the diagnostic code is predicated on loss of range of motion. VAOPGCPREC 9- 98; see also 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999). The Court has held that a veteran can be rated separately for different manifestations of the same injury, where "none of the symptomatology for any one of the [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute "pyramiding" prohibited by 38 C.F.R. § 4.14 (1999). Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The record reflects that the appellant was seen on an emergency basis by the VA in February 1998 stating that he "fell on his right leg as he was on his left knee" 24 hours before. It was reported that pain was worse in the right popliteal fossa and right calf. The veteran indicated that he had pain in the right ankle with eversion and that extension of the right leg also produced pain in the calf and knee. Physical examination revealed findings which included tenderness with eversion of the right foot and tenderness in the right calf with extension of the right knee. An assessment of strained muscle was rendered. Tylenol with codeine was prescribed for pain. The appellant's right ankle was most recently evaluated for VA compensation and pension purposes in March 1998. The veteran stated at that time that he had had an increase in pain associated with weakness and stiffness in the morning, and that pain had been getting progressively worse. He said that instability was present and that that had been the reason he had been seen in the emergency room the previous month. He related that he had easy fatigability and lack of endurance, and said that pain was relative to activity, and was usually present on the anterior aspect of the ankle joint. The veteran stated that he took two Tylenol per day for pain which helped him, but that flare-ups occurred in the afternoon usually following increased activity or walking. He said that such symptoms usually lasted for a couple of hours. The examiner noted that no definite functional impairment during the flare-ups could be ascertained. The veteran reported he had used a cane for a while but had stopped using it as he had done well without it. It was related that he did not use any crutch, brace or corrective shoes. He reported no episodes of dislocation, recurrent subluxation or inflammatory arthritis. He complained of pain on eversion of the foot with some swelling. It was noted that the appellant was retired and had not worked for three years, as he could no longer perform odd jobs because he could not go up and down ladders, and could not engage in any gardening. Upon physical examination, dorsiflexion of the right ankle was to 10 degrees and plantar flexion was to 40 degrees with pain, especially over the anterior aspect of the joint, which was also painful on palpation. It was noted that pain started on plantar flexion from about 20 degrees until the end of range of motion. The examiner stated it was difficult to determine additional limitation due to pain. Vascular pulses were well maintained. Tenderness was elicited over the anterior and medial aspects of the joint as well. There was no evidence of painful motion on routine walking. The veteran surmised that he could probably walk a mile if he went slowly. There was no edema, effusion, instability, weakness, redness, heat, abnormal movement or guarding noted on examination. It was reported that X-rays obtained a month before in February 1998 disclosed no fracture or dislocation. Post-traumatic deformity was observed. It was indicated that the appellant's previous X-rays showed mild degenerative changes in the tibiofibular joint with minimal spurring and some ossification of the tibiofibular ligament. An impression of traumatic arthritis with limitation of motion and early degenerative joint disease was rendered. Analysis A careful review of the evidence reveals that although the veteran asserts that the symptoms associated with his service-connected right ankle disability are more severely disabling than reflected by the currently assigned disability evaluation, the preponderance of the clinical evidence of record does not support this assessment. On most recent VA examination in March 1998, he was shown to lack 10 degrees of full dorsiflexion of the right ankle, and only lacked five degrees of plantar flexion according to normal clinical standards, as set forth in 38 C.F.R. § 4.71, Plate II (1991). Therefore, the most recent examination objectively demonstrated findings show that the degree of limitation of motion of the right ankle falls far short of what is required for a rating in excess of 10 percent. In considering the additional functional impairment which may be attributed to pain and weakness, the Board acknowledges that the veteran complains of flare-ups of right ankle pain, including on use, and generalized tenderness has been elicited upon examination. However, the examiner indicated that no definite functional impairment during painful flare- ups could be ascertained. The appellant himself admits that he is probably able to walk a mile, and it is clear that he requires no assistive devices. There is no evidence of painful motion on routine walking. No edema, effusion, redness, heat, abnormal movement, guarding, or subluxation was observed on examination. The Board also gives credence to the appellant's assertions that he experiences weakness, instability and swelling in the right ankle. However, the examiner elicited no such symptoms on most recent evaluation, and the veteran has not presented any clinical evidence to the contrary. Consequently, such factors such as weakness, fatigability, or instability are not indicated in the record to an extent that would support the assignment of a higher rating. The Board thus finds that there is no clinical information of record, overall, to substantiate a degree of severity that rises to the level of an evaluation in excess of 10 percent. It is thus found that the preponderance of the evidence, even when additional functional impairment is considered due to complaints of pain, fatigue and weakness, does not warrant a rating in excess of 10 percent, or demonstrates a basis for a rating under a separate additional diagnostic code. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 see also VAGCOPPREC 9-98 (Aug. 14, 1998). Therefore, a disability evaluation in excess of 10 percent is denied. Consideration has been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether or not they were raised by the appellant with respect to the claim referred to above. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds that those sections do not provide a basis upon which to assign a higher disability evaluation as to this matter. The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321 only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual" circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to the disability. See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this case, the record before the Board does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular rating schedule. The Board has also considered the doctrine of benefit of the doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, a reasonable basis for a grant of the benefit sought on appeal is not identified at this time. ORDER An increased rating for residual of right ankle sprain with traumatic arthritis is denied. U. R. POWELL Member, Board of Veterans' Appeals