Citation Nr: 0001263 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-01 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left heel and foot condition secondary to a service-connected left ankle disability. 2. Entitlement to an increased rating for the left ankle disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from October 1965 to July 1969. In May 1997, the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, denied the veteran's claim for service connection for a left heel and foot condition- which he alleges is secondary to his service-connected left ankle disability. The RO also denied his claim for a higher (i.e., increased) rating for his left ankle disability-which is rated as 10 percent disabling. He appealed to the Board of Veterans' Appeals (Board). FINDINGS OF FACT 1. Competent medical evidence has been submitted suggesting that the veteran has a left heel and foot condition that is as likely as not a result of his service-connected left ankle disability. 2. The veteran's claim for service connection for a left heel and foot condition is plausible. 3. The veteran's postoperative residuals of torn lateral ligaments of the left ankle are manifested by mild degenerative arthritis in his left ankle and no objective clinical indications of swelling, pain/painful motion, or instability/weakness; he has completely normal plantar flexion and no more than moderate limitation of dorsiflexion. CONCLUSIONS OF LAW 1. The veteran has submitted a well-grounded claim for service connection for a left heel and foot condition secondary to his service-connected left ankle disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999). 2. The criteria for a rating higher than 10 percent for the post operative residuals of torn lateral ligaments of the left ankle have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5010, 5271 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Left Heel and Foot Condition A veteran who files a claim for benefits under a law administered by VA has the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is "well grounded." 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court)-formerly known as the United States Court of Veterans Appeals prior to March 1, 1999-has defined a well-grounded claim as a "plausible claim, one which is meritorious on its own or capable of substantiation." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court also has held that, where the determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Only when this initial burden has been met does VA have a "duty to assist" the veteran in developing the evidence pertinent to his claim. See Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam); Slater v. Brown, 9 Vet. App. 240, 243 (1996). Service connection may be granted for disability resulting from a personal injury sustained or a disease contracted in the line of duty, or for aggravation of an injury or a disease that existed prior to service. See 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), (d), 3.306. Service connection also may be granted on a secondary basis for a condition that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Additionally, the Court has interpreted section 3.310(a) to permit service connection on a secondary basis for the degree of aggravation of a condition that is proximately due to or the result of a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order for a claim for secondary service connection to be well grounded, there must be competent medical evidence suggesting there is a nexus or relationship of some sort between the condition claimed and a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Anderson v. West, 12 Vet. App. 491, 496 (1999). When determining whether a claim is well-grounded, VA must presume that the evidence submitted by the veteran or others acting on his behalf is credible-unless the allegations made are inherently incredible or beyond the competence of the person making them. King v. Brown, 5 Vet. App. 19, 21 (1993). A senior medical consultant affiliated with The American Legion (AL) veterans' service organization-which is representing the veteran in this appeal-indicated in an October 1999 statement that his left heel and foot condition is "as likely as not" a result of his service-connected left ankle disability. Therefore, because this statement suggests a correlation between the condition claimed and the service-connected disability, the claim for secondary service connection is at least plausible and, therefore, well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Locher v. Brown, 9 Vet. App. 535, 538-39 (1996), citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). To this extent, this claim is granted, subject to the additional development and consideration directed in the REMAND below. II. Increased Rating for the Left Ankle Disability The veteran's claim seeking a higher rating for his left ankle disability also is "plausible" and, therefore, "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). A claim, as here, that a service-connected disability is more severe than presently rated is well grounded where the veteran alleges that a higher rating is justified due to the severity of his condition. See Johnston v. Brown, 10 Vet. App. 80, 84 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that VA has complied with the "duty to assist" the veteran in fully developing the evidence pertinent to his claim. According to a June 1999 letter, the RO made several attempts to locate records of recent treatment that he allegedly received for his left ankle at the VA Medical Centers (VAMCs) in Bath and Buffalo, New York, and in Erie, Pennsylvania-but the RO's efforts were to no avail. Each of those facilities indicated they had no clinical records in their possession concerning the veteran, so none are forthcoming, and VA has met its obligation-to the extent possible-to assist him with his claim. Id. Disability evaluations are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities-which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When making determinations as to the appropriate rating to be assigned, VA must take into account his entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In cases such as the one at hand, however, where entitlement to compensation already has been established and the appropriateness of the current rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In February 1969, while on active duty in the military, the veteran tore the lateral ligaments in his left ankle. He subsequently underwent surgery in March 1969 to repair the ligaments and, in October 1969, was granted service connection (and a 10 percent rating) for the postoperative residuals of the injury. This rating has been in effect ever since. He alleges, however, that he has begun to experience more severe instability and pain in his ankle-thereby warranting a higher rating. The RO had the veteran examined in January 1997 to obtain a medical opinion concerning the present status of his disability. X-rays taken of his ankle during that evaluation confirmed that he had degenerative changes (i.e., arthritis). If, as here, the arthritis is due to trauma and substantiated by X-ray findings, then it is rated as degenerative arthritis. See 38 C.F.R. § 4.71a, Code 5010. Degenerative arthritis-in turn-is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint/joints involved (here, Code 5271 for the ankle). See 38 C.F.R. § 4.71a, Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When, however, the limitation of motion is noncompensable (i.e., 0 percent disabling) under the appropriate diagnostic code, a rating of 10 percent is to be assigned nonetheless for each such major joint or group of minor joints affected by the limitation of motion-to be combined, not added, under Code 5003. This Code further states that, in the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted if-in addition to this-there is evidence of occasional incapacitating exacerbations. Id. The VA physician who examined the veteran in January 1997 indicated that he had 45 degrees of plantar flexion in his left ankle-which is completely normal. See 38 C.F.R. § 4.71, Plate II, for standard range of motion in the ankle. He could dorsiflex his ankle to 10 degrees-which, although admittedly less than normal (normal being to 20 degrees)-is no more than "moderate[ly]" restricted. Thus, under Code 5271, this does not entitle him to a rating higher than 10 percent because-for a 20 percent rating-he must have "marked" limitation of motion. The Board does not believe that he does, particularly since the VA examiner went on to note in the report of the evaluation that there were no objective clinical signs of swelling to restrict the range of motion, or indications of pain (e.g., tenderness to palpation), painful motion, instability/weakness, early fatigability, etc., that might otherwise provide a basis for a higher rating in accordance with the Court's holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). See also 38 C.F.R. §§ 4.40, 4.45, 4.59. The examiner also stated that the veteran's arthritis was "mild." Although the examiner's use of this term in assessing the status of the arthritis is not dispositive-in and of itself-of the overall severity of the veteran's disability, it is permissible for the Board to consider such descriptive language in evaluating the overall severity of his disability, so long as the result obtained is consistent with the other evidence of record and the ultimate decision made is "equitable and just" in light of it. See 38 C.F.R. §§ 4.2, 4.6. The VA examiner also indicated that the scar from the veteran's surgery in service is well healed and completely asymptomatic-showing no signs of tenderness or adherence to the underlying tissue. Hence, he is not entitled to a higher/separate rating under 38 C.F.R. § 4.118, Codes 7803, 7804 and 7805. The American Legion's senior medical consultant contended in his October 1999 statement that it would be more appropriate to evaluate the severity of the veteran's left ankle disability under the criteria of Code 5270 (for ankylosis). The medical consultant believes Code 5270 more closely describes the veteran's condition and would result in a more favorable rating. However, aside from the fact this physician did not provide any medical explanation or rationale whatsoever for his opinion, the results of the range of motion studies conducted during the January 1997 VA orthopedic examination clearly show the veteran has range of motion in his ankle, albeit somewhat limited on dorsiflexion, which obviously means that his ankle is not completely immobile, consolidated or fused (i.e., ankylosed) in a fixed position. Therefore, the criteria of Code 5270 do not apply to the facts of this case. Moreover, it is within the Board's discretion to determine which is the most appropriate diagnostic code under which to rate the veteran's disability, based upon the particular facts and circumstances of the case at issue, provided the Board adequately explains its reasoning. See e.g., Butts v. Brown, 5 Vet. App. 532, 538-39 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). For the aforementioned reasons, the Board concludes that the overall severity of the veteran's left ankle disability is most commensurate with a 10 percent rating. Consequently, this is the rating that must be assigned. See 38 C.F.R. § 4.7. The preponderance of the evidence is against a rating higher than 10 percent, so the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The above determination is based on application of the pertinent provisions of the VA's Schedule for Rating Disabilities (Rating Schedule). Additionally, however, the Board notes that there is no indication that the schedular criteria are inadequate to evaluate the veteran's disability-as there has been no showing that it has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), or that it has necessitated frequent periods of hospitalization or otherwise rendered impracticable the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this claim to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for service connection for a left heel and foot condition-secondary to the left ankle disability-is well grounded; the appeal is granted to this extent subject to the further development and consideration discussed below. The claim for a rating higher than 10 percent for the postoperative residuals of torn lateral ligaments of the left ankle is denied. REMAND Although The American Legion's medical consultant indicated in his October 1999 statement that the veteran's left heel and foot condition is "as likely as not" a result of his service-connected left ankle disability, the medical consultant did not provide any clinical explanation or rationale whatsoever for his opinion. Also, although X-rays taken of the veteran's left heel, ankle, and foot during the January 1997 VA orthopedic examination showed that he had a calcaneal spur and probably a hammer toe deformity, there was no indication of the etiology of these conditions- particularly insofar as whether they are proximately due to or the result of the service-connected left ankle disability. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. at 448. Consequently, the veteran should undergo another VA orthopedic examination to obtain a medical opinion concerning these determinative issues. See Goss v. Brown, 9 Vet. App. 109, 114 (1996); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As alluded to earlier in this decision, the RO already has attempted several times to obtain records of recent treatment the veteran supposedly received for his left heel, ankle, and foot, at the VAMCs in Bath and Buffalo, New York, and in Erie, Pennsylvania. Therefore, no further action by the RO in this regard is deemed necessary. If, however, the veteran indicates that other records relevant to his appeal are not on file, then they should be obtained. See Hayes v. Brown, 9 Vet. App. 67 (1996); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, this claim is REMANDED to the RO for the following development and consideration: 1. In the event there are any records of additional treatment and/or evaluation for the left heel, ankle, and foot-VA or private- that have not been previously submitted into the record, such should be obtained and made part of the file. The veteran should be contacted in this regard. 2. The RO should schedule the veteran for a VA orthopedic examination to obtain a medical opinion as to: a) whether it is at least as likely as not that he has a left heel and foot condition that is proximately due to or the result of his service-connected left ankle disability; and b) whether there is disability involving his left heel and foot due to aggravation by the service-connected left ankle disability. If so, the examiner should indicate the degree of disability that is attributable to such aggravation. It is imperative that the physician designated to examine the veteran review all of the evidence in the claims folder that is pertinent to the appeal, including a complete copy of this REMAND and the October 1999 statement from The American Legion's senior medical consultant. The examiner must provide the complete rationale underlying any conclusions drawn or opinions expressed, citing, where necessary, to specific evidence in the record, in a typewritten report. 3. The RO should review the examination report for compliance with the directives of this REMAND. If deficient in any manner, it should be returned, along with the claims file, for immediate corrective action. 4. Upon completion of the above development, and after undertaking and completing any additional development deemed warranted by the record, the RO should readjudicate the veteran's claim for service connection for a left heel and foot condition secondary to the service-connected left ankle disability-to include a discussion of the October 1999 statement from The American Legion's senior medical consultant and the Court's holding in Allen. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 5. If the benefits sought by the veteran are not granted to his satisfaction, he and his representative must be furnished a supplemental statement of the case (SSOC) and given an opportunity to submit written or other argument in response thereto, before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford further consideration of the veteran's claim; it is not the Board's intent to imply whether the benefits requested should be granted or denied. He does not need to take any action until otherwise notified, but he and/or his representative may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals