Citation Nr: 0007769 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 95-00 999 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left ankle instability, postoperative, with osteochondritis dissecans of the left talus. 2. Entitlement to a compensable rating for left patellar tendinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from January 1986 to April 1993. This case comes before the Board of Veterans' Appeals (Board) from a June 1993 rating decision that granted service connection for left ankle instability in postoperative status with osteochondritis dissecans of the left talus and left patellar tendinitis, at evaluations of 10 percent and 0 percent, respectively. In a December 1996 decision, the Board remanded those issues and denied service connection for bilateral pes planus with plantar fasciitis and a left elbow injury. The RO has again recertified the case to the Board for final appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's service-connected left ankle disability is productive of marked limitation of motion, without ankylosis. 3. Service-connected left patellar tendinitis consists of subjective complaints of pain that affects functional impairment but no objective clinical evidence of atrophy, instability, crepitus, swelling, weakness, or x-ray evidence of arthritis. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent for left ankle instability, postoperative, with osteochondritis dissecans of the left talus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5271 (1999). 2. The criteria for a 10 percent evaluation for service- connected left patellar tendinitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5024, 5260, 5261 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question is whether the appellant has presented evidence of well-grounded claims. The United States Court of Appeals for Veterans Claims (Court) has defined a well- grounded claim as a claim which is plausible; i.e., one that is meritorious on its own or capable of substantiation. If the claim is not well grounded, the appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). When a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). If the appellant has submitted a well-grounded claim, VA has a duty to assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board notes that in the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background When the veteran was provided a medical evaluation board/physical evaluation board examination in January 1993, clinical evaluation showed that the veteran's left ankle "popped." The diagnoses were left knee tendinitis and status post lateral stabilization of the left ankle, March 1992. The veteran reported that his left ankle and left knee were always painful. A final medical evaluation report dated in February 1993 shows that the veteran's chief complaint was left ankle pain and popping over the preceding year. It was noted by history that the veteran underwent a reconstructive procedure in March 1992. Since that time, the veteran had chronic pain and popping of the left ankle. The veteran also had left knee pain since an injury in January 1991. All evaluations of the left knee showed chronic patellar tendinitis which had been improving slowly over the past few years, but still caused significant problems with running, jumping, and sometimes with activities of daily living. Physical examination at the time was normal. The left knee had full range of motion with no anterior, medial, lateral or posterior instability. There was no atrophy or knee effusion. The veteran had a mildly boggy and tender patellar tendon but otherwise normal examination. The left ankle had significantly limited inversion to about 5 degrees. There was full dorsiflexion and plantar flexion of the ankle, with a palpable pop in the ankle joint and pain in the medial aspect of the talus with dorsiflexion. X-rays of the knee and ankle were within normal limits. A magnetic resonance imaging (MRI) of the left knee was normal. A computerized tomography (CT) of the left ankle showed a small osteochondritis dissecans lesion which was located in the medial aspect of the talus, essentially where his ankle pain occurred. The examiner noted that due to the ankle and knee pain, the veteran was unable to do any running or jumping; he often had difficulty with prolonged walking and strenuous activities due to pain and instability. The prognosis was generally good with limited activity; however, it was very unlikely that he would be able to get back the full normal running and jumping with his current problems. The final diagnoses were left patellar tendinitis, mild; left ankle instability, status post reconstruction, resolved; limited subtalar motion of the left ankle, secondary to previous surgical procedure, moderate; and osteochondritis dissecans lesion of the left talus, severe. It was recommended that the veteran be processed out of the service since he was unfit for the military. The veteran provided testimony at a hearing at the RO in March 1994. The veteran testified that if he stood up or walked around for about 30 minutes, his left knee swelled and tightened up on him. Hearing transcript (T.), 1. He stated that when he knelt down or tried to rise up again, he felt some grinding and a sharp pain in the center of his kneecap. T. 2. The veteran reported daily swelling of the knee. T. 3. The veteran testified that his left ankle "gives me a lot of trouble." He stated that he was unable to turn it to the inside due to past surgery. The veteran was afforded a VA examination in May 1994, and his subjective complaints included an inability to run; a popping, unstable and painful ankle; and left knee pain with swelling, weakness and limitation of motion. Objective findings included a scar of the left lateral malleolar area of the ankle. There was a slight decrease of plantar flexion of the left ankle, with no instability, swelling or deformity. Plantar flexion of the left ankle was to 30 degrees and dorsiflexion was to 10 degrees. Flexion of the left knee was to 110 degrees and extension was to 0 degrees. X-rays of the left ankle and left knee were normal. The diagnosis was normal examination of the left ankle and left knee. The veteran was afforded VA examinations in February and March 1998. The veteran complained that he had pain when he stood or walked for a long period of time. He stated that he had restriction of hindfoot motion of the left foot as a result of surgery. The veteran also complained of pain of the left knee, specifically in the middle of the patella; knee motion caused grinding and popping. Physical examination showed that the veteran stood upright with full weight on both feet. There was a well-healed surgical scar. The examiner described the motion of the left ankle as "fair" and restricted, with dorsiflexion at 5 degrees and plantar flexion at 30 degrees; on another examination, dorsiflexion was to 10 degrees and plantar flexion was to 45 degrees. There was a 50 percent loss of subtalar motion. There was a maximum of 5 degrees of inversion of the hindfoot. One examination showed mild swelling in the left ankle region. The veteran was noted not to use a brace for support or crutches or a cane. There was no limp when he walked into the examining room. There was no atrophy of either extremity. The examiner reviewed newer x-rays of the left ankle from June 1997 that were essentially negative, with no further evidence of osteochondritis dissecans or degenerative or postsurgical arthrosis. A current x-ray of the left knee was negative for abnormalities. An x-ray of the left ankle revealed calcific shadows posterior to the ankle joint which possibly represented calcification associated to a tendon; the well-corticated bony fragment could represent an extra ossicle. Physical examination of the left knee demonstrated no effusion or swelling. There was full range of motion, without instability. Retropatellar tenderness was shown, and there was some tenderness of the ligamentum patellae. The pertinent diagnoses were chondromalacia of the left knee; status post surgery of the left ankle/foot; and osteochondritis dissecans. It was commented by the examiner that the radiologist no longer described osteochondritis dissecans. That condition might have healed or the described large bony fragment posterior to the ankle might be the remnant of the loose cartilaginous/bone fragment which had allowed the diagnosis of osteochondritis dissecans. Legal Criteria Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155. In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2 (1999), which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson v. West at 137. In each case, the Board must determine whether evidence supports the veteran's claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where there is a question as to which of two evaluations shall be applied, 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). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initial Matters When the Board remanded this case in December 1996, the Board requested that the veteran be provided a VA examination, during which the examiner was to make findings with regard to the veteran's complaints of pain. In January 2000 written arguments, the veteran's representative accurately pointed out that the 1998 VA examination reports did not identically answer all of the questions proposed by the Board. With regard to the representative's comment, the Board finds, in this instance, that the 1998 examinations addressed the topic of pain and its effects sufficiently when the disability picture is considered along with the examinations prior to service discharge and in 1994. Additionally, the Board also notes that the 1998 examiner did not mention whether the claims file was reviewed, as had been requested in the earlier remand. However, the RO's instructions in conjunction with scheduling the examinations included providing the claims file to the examiner. Thus, the Board concludes that the RO sought as best as possible to comply with this aspect of the Board's remand. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (presumption of regularity attaches to actions of public officials). In sum, the Board does not find that any prejudicial error resulted in the RO's compliance with the Board's remand action. See Stegall v. West, 11 Vet. App. 268 (1998) (The Board is obligated by law to ensure that the RO complies with its directives.) Accordingly, the Board will proceed with the veteran's appeal without further delay. Left Ankle The veteran is currently in receipt of a 10 percent disability evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5099-5271. 38 C.F.R. § 4.27 (1999) provides that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. When choosing which diagnostic code to apply to an unlisted condition, codes for similar disorders or that provide general descriptions that encompass many ailments should be considered. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In deciding which diagnostic code is "closely related" to the unlisted condition, the following three factors may be taken into consideration: (1) whether the functions affected by the condition are analogous; (2) whether the anatomical location of the condition is analogous; and (3) whether the symptomatology of the condition is analogous. Lendenmann v. Principi, 3 Vet. App. 345, 350-51 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). First, the veteran's current complaints consist of pain that leads to decreased activity or limitation of motion. As the record reflects clinical manifestations of a measurable limitation of left ankle motion, the Board finds that DC 5271 is the most appropriate code for rating the ankle under 38 C.F.R. § 4.71a. Moderate limited motion of the ankle is rated 10 percent disabling. Marked limitation of motion of the ankle is rated 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1999). The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part which becomes disabled on use must be regarded as seriously disabled. However, a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 and 4.59 (1999) contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as at least minimally compensable. Id. At the time of the veteran's final medical evaluation report prior to his discharge from service in February 1993, the examiner noted that due to ankle pain, the veteran had limited activities. In his October 1993 substantive appeal, the veteran continued to complain of chronic pain. He testified a few months later in March 1994 that the left ankle was still problematic for him. These complaints of left ankle pain are repeated in the subsequent VA examinations in 1994 and 1998, when limitation of motion was also demonstrated. Normal range of motion of the ankle is 45 degrees of plantar flexion and 20 degrees of extension. 38 C.F.R. § 4.71, Plate II (1999). In 1994, plantar flexion was to 30 degrees and dorsiflexion (extension) was to 10 degrees. In 1998, plantar flexion was recorded as 30 degrees and 45 degrees on 2 separate occasions, and dorsiflexion was documented as 5 degrees and 10 degrees. The examiner most recently also observed that there was a 50 percent loss of subtalar motion and a maximum of 5 degrees of inversion of the hindfoot. The Board notes that the "claimant's painful motion may add to the actual limitation of motion." VAOPGCPREC 9-98 (August 14, 1998). Given the degree of documented limitation of motion and in view of the veteran's ongoing pain, the Board finds that the disability picture since the time of service separation resulted in marked limited motion of the ankle so as to justify a 20 percent rating under DC 5271. A 20 percent evaluation is the maximum rating provided under DC 5271. A 30 percent rating may be assigned under DC 5270 when there is ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) [citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91]; see also Lewis v. Derwinski, 3 Vet. App. 259 (1992). In this case, there is no medical evidence that the veteran's left ankle is ankylosed so as to warrant a higher rating under DC 5270. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, as seen by the separate assignment of evaluations based on instability and arthritis with limitation of motion; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this case, the Board notes that record discloses the presence of a surgical scar. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 and 7805 (1999) pertain to scars. A 10 percent evaluation is warranted for superficial, poorly nourished scars with repeated ulceration under Diagnostic Code 7803. Diagnostic Code 7804 provides that a 10 percent disability evaluation is warranted for superficial scars that are tender and painful on objective demonstration. Diagnostic Code 7805 otherwise provides that a rating for scars is based upon the limitation of function of the affected part. 38 C.F.R. § 4.118. In the instant case, the reports of recent VA examinations are notable for evidence of an observable left ankle scar that is described as well-healed. No examiner has attributed manifestations as those required in the DCs above to the scar. Thus, the Board finds that the criteria for a separate 10 percent evaluation under Diagnostic Codes 7803, 7804 and 7805 are not met. 38 C.F.R. §§ 4.14, 4.118. Left Knee The veteran's left knee disability is rated under Diagnostic Code 5024 for tenosynovitis. Disorders rated under Diagnostic Code 5024 must be rated on the limitation of motion of the affected parts under Diagnostic Code 5003 (degenerative arthritis). See 38 C.F.R. § 4.71a. 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id., Diagnostic Code 5003. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 (1999). Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. For a 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Prior to leaving service, the veteran's left knee disorder was described as mild; the veteran's patellar tendon was shown to be mildly boggy and tender. However, range of motion was full, without any instability shown. Nevertheless, the veteran described how the left knee continued to produce some functional limitations when he testified at a hearing in March 1994. Similar to the final service medical evaluation report noted above, the post service examination reports in 1994 and 1998 contain evidence both for and against the veteran's claim. For example, at the time of the May 1994 examination, the examiner noted the veteran's reports of left knee pain with swelling, weakness and limitation of motion. However, there were no abnormal findings on clinical and x-ray examination. In 1998, the veteran continued to report left knee pain, with grinding and popping with certain activities. Evidence for the veteran's claim included retropatellar tenderness and tenderness of the ligamentum patellae. Nevertheless, the examiner noted full range of motion, without effusion or swelling. When all the evidence is assembled, the Secretary is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board is finding every reasonable doubt in favor of the veteran. As noted above, it is the intention of the rating schedule to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as at least minimally compensable. 38 C.F.R. §§ 4.40, 4.59. The veteran's service records indicate his painful knee joint and the post service medical records continue to show his complaints. The manifestation of tenderness is objectively noted by medical examiners. While other clinical and x-ray examination findings are negative, the Board concludes that the minimal compensable evaluation, 10 percent, based on limitation of motion of the knee is warranted. 38 C.F.R. § 4.71a, DC 5260, 5261; VAOPGCPREC 9-98 (August 14, 1998). The Board does not find that a rating higher than 10 percent for the service-connected left patellar tendinitis is warranted. As discussed above, the record does not demonstrate that the veteran has flexion limited to 30 degrees or extension limited to 15 degrees, which is required for a higher rating. Id. Further, the Board does not find that the effects of pain are of such severity that such limitation of motion ensues. Certain hallmarks of the effects of painful joints, such as atrophy, are lacking in this case. 38 C.F.R. § 4.40. Consequently, a rating in excess of 10 percent is not warranted. The Board notes that this appeal for higher ratings stemmed from an initial rating determination that had granted service connection. In such situations, the concept of "staged ratings" may be applicable. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the RO did not specifically discuss staged ratings. However, the Board finds that resolution of this appeal does not harm the veteran or his due process rights. Initially, the RO did set forth what criteria were necessary for a higher rating, and the veteran had the opportunity to present evidence as well as testimony at hearings with regard to the pertinent criteria. Additionally, for the reasons previously discussed, a rating higher than those as granted is not warranted at any time after service separation, and the Board finds that the percentage ratings as allowed herein properly commence as of the grant of service connection, April 16, 1993. Bernard v. Brown, 4 Vet. App. 384 (1993). (CONTINUED ON NEXT PAGE) ORDER An evaluation of 20 percent for left ankle instability, postoperative, with osteochondritis dissecans of the left talus is granted, subject to the regulations governing the payment of monetary benefits. An evaluation of 10 percent evaluation for service-connected left patellar tendinitis is granted, subject to the regulations governing the payment of monetary benefits. M. Sabulsky Member, Board of Veterans' Appeals