Citation Nr: 0005584 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 97-32 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Evaluation of service-connected multiple stress fractures (including hips, thighs, knees, ankles, and feet), currently evaluated as noncompensably disabling. ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from March 1996 to October 1996. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1997 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for multiple stress fractures (including hips, thighs, knees, ankles, and feet) and assigned a noncompensable evaluation. Review of the record reveals that the RO did not expressly consider referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims (the Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the RO did not expressly consider 38 C.F.R. § 3.321(b)(1), the Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDINGS OF FACT 1. Stress fracture, bilateral hip-thigh, is currently manifested by no functional impairment. 2. Stress fracture, bilateral thigh-knee, is currently manifested by no functional impairment. 3. Stress fracture, bilateral ankle, is currently manifested by no functional impairment. 4. Stress fracture, bilateral foot, is currently manifested by no functional impairment. CONCLUSIONS OF LAW 1. Stress fracture, bilateral hip-thigh, is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.40, 4.45, 4.59; Part 4, Diagnostic Code 5262 (1999). 2. Stress fracture, bilateral thigh-knee, is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59; Part 4, Diagnostic Code 5260 (1999). 3. Stress fracture, bilateral ankle, is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.40, 4.45, 4.59; Part 4, Diagnostic Code 5271 (1999). 4. Stress fracture, bilateral foot, is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.40, 4.45, 4.59; Part 4, Diagnostic Code 5271 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant claims that she warrants a higher evaluation than the noncompensable one assigned to her stress fractures. She stated that she has pain most of the time. She states that people do not want to hire her because of her condition. She asserts that she cannot stand for a long period of time nor can she sit for a long period of time. She states that her feet will swell. The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that her claims for evaluations in excess of the initial assignment of noncompensable evaluations are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, where the claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of an evaluation for the disability, the claim continues to be well grounded as long as the rating schedule provides for a higher evaluation, and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 225 (1995). The Board has continued the issue as "evaluation of" the service-connected disabilities since service connection has been granted, and the appellant seeks a higher evaluation. The appellant is not prejudiced by this naming of the issue. The Board has not dismissed the issue, and the law and regulations governing the evaluation of the disabilities are the same regardless of how the issue has been phrased. See Fenderson v. West, 12 Vet. App. 119, 125- 26 (1999). The distinction between disagreement with the original evaluation awarded and a claim for an increased evaluation is important in terms of VA adjudicative actions. Id. However, the Court did not provide a substitute name for the issue. In reaching the determination below, the Board has considered whether staged evaluations should be assigned. The Board concludes that the disability has not significantly changed and a uniform evaluation is appropriate in this case. The appellant has been recently examined and her medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on this issue have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). Service medical records reveal that in May 1996, the appellant complained of left hip pain. She stated that she had fallen three days prior. Her gait was noted to be moderate on the left. She was tender to palpation on the left femoral neck area. The assessment was left femoral neck stress fracture. A bone scan done at that time showed mild stress reactions about the hips, knees, ankles, and feet. She was seen several times after this date with complaints of pain in the hips, knees, ankles, and feet. In June 1996, the appellant reported that the pain was mostly gone, but stated that the pain was still in her left hip. The examiner stated that the stress fractures were resolving. She was examined that same month for pain complaints. On examination, the appellant had full range of motion in the hips with 4/5 motor strength. She had full range of motion in the knees with 5/5 motor strength. She had full range of motion in the ankles with 5/5 motor strength. The examiner noted that she had an antalgic gait. She had tenderness to touch palpation over the metatarsophalangeal joints and midtibias bilaterally. She was also tender over the left lateral cuneiform. She had negative heel strike. The examiner stated that there was no erythema, mass, deformity, or edema noted. The examiner stated that the appellant was currently on crutches and not able to run, stand for any prolonged period of time, or walk for any prolonged period of time without having severe pain in her lower extremities. The diagnosis was mild stress reactions of the hips, knees, ankles, and feet. The appellant underwent a VA examination in April 1997. The appellant reported that she could not run or walk fast. She stated that the pain was mostly in her groin and in the front of both thighs. She reported "some" pain over the dorsum of both feet. The VA examiner stated that there was no swelling, deformity, angulation, false motion, shortening, or intra-articular movement. The VA examiner stated that the appellant had pain in both hips when walking on her toes and had the same pain when walking on her heels. The appellant reported right thigh pain when she squatted. Right hip flexion was 120 degrees and abduction was 50 degrees. Left hip flexion was 110 degrees and abduction was 55 degrees. Right knee flexion was 120 degrees and extension was 180 degrees. Left knee flexion was 135 degrees and extension was 180 degrees. Right ankle dorsiflexion was 10 degrees and plantar flexion was 35 degrees. Left ankle dorsiflexion was 5 degrees and plantar flexion was 40 degrees. Supination and pronation of both ankles was within normal limits. The VA examiner stated that the appellant had a full body nuclear medicine bone scan, which had been found to be within normal limits in October 1996. The VA examiner stated that x-rays taken of the knees, pelvis, hip, and feet were all within normal limits. The VA examiner stated that the appellant had no significant abnormalities found, except slight decreased range of motion in her hips and knees, but which was mostly secondary to the large size of the appellant's legs and the muscular inflexibility. She stated that the appellant also had slight decreased range of motion for plantar flexion of the right ankle and for dorsiflexion of the left ankle, noting that the significance of such a small decrease in the range of motion was questionable. She added that there was no evidence of myopathy. Initially, the VA examiner entered a diagnosis of "none" in the April 1997 examination report; however, in an August 1998 addendum, she entered a diagnosis of status post mild stress reactions about the hips, knees, ankles, and feet on bone scan. Service-connected disabilities are rated in accordance with a schedule of ratings that are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The Board notes that the RO has evaluated the appellant's service-connected disability as one disability. The Board finds that each stress fracture should be evaluated separately. However, it must be noted that the thigh has been evaluated in conjunction with the hip and with the knee. Under Diagnostic Code 5262, a 10 percent evaluation is warranted for malunion of the tibia and fibula with slight ankle or knee disability, and a 20 percent rating is warranted for malunion of the tibia and fibula with moderate ankle or knee disability. 38 C.F.R. Part 4, Diagnostic Code 5262 (1999). Impairment of the tibia and fibula represented by malunion with marked knee or ankle disability warrants a 30 percent disability rating. Id. Flexion of the leg limited to 60 degrees warrants a 0 percent evaluation; flexion limited to 45 degrees warrants a 10 percent evaluation; flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5260 (1999). Under the criteria for impairment of the knee other than ankylosis, a 10 percent evaluation is assigned for slight impairment of a knee, a 20 percent evaluation is assigned for moderate impairment of a knee and a 30 percent evaluation is assigned for severe impairment of a knee as measured by the degree of recurrent subluxation or lateral instability. 38 C.F.R. Part 4, Diagnostic Code 5257 (1999). Moderate limitation of motion of the ankle warrants a 10 percent evaluation and marked limitation of motion warrants a 20 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5271 (1999). Under Diagnostic Code 5284, moderate residuals of a foot injury warrant a 10 percent evaluation; moderately severe residuals warrant a 20 percent evaluation; and severe residuals warrant a 30 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5284 (1999). When the Rating Schedule does not provide a 0 percent evaluation for a Diagnostic Code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). I. Stress fracture, bilateral hip-thigh After having reviewed the evidence, the Board concludes that the preponderance of the evidence is against a compensable evaluation for stress fracture, bilateral hip-thigh. Although tenderness has been reported in the bilateral hip and thigh, the appellant had full range of motion in the hips with 4/5 motor strength in June 1996. The examiner stated that there was no erythema or edema. When examined in April 1997, the VA examiner stated that the appellant had flexion of 120 degrees in the right hip and 110 degrees in the left hip and abduction of 50 degrees in the right hip and 55 degrees in the left hip. The VA examiner noted that there was no swelling, deformity, angulation, false motion, or intra-articular movement. The VA examiner stated that a full body nuclear medicine bone scan was found to be within normal limits and that x-rays of the pelvis were within normal limits. Following examination, the VA examiner stated that the appellant had no significant abnormalities found except slight decreased range of motion in the hips; however, she related it to the appellant's size of her legs and the lack of muscular flexibility. The Board finds that such clinical findings are indicative of a noncompensable evaluation. See 38 C.F.R. § 4.31; Part 4, Diagnostic Code 5262. A compensable evaluation under Diagnostic Code 5262 is not warranted. There is no evidence of malunion of the tibia and fibula with any ankle or knee disability to warrant a 10 percent evaluation. See 38 C.F.R. Part 4, Diagnostic Code 5262. Examination of the ankles and knees in June 1996 were within normal limits. She had 5/5 strength in both her ankles and knees. The VA examiner noted that the appellant had limited range of motion in her hips, but stated that such not due to the hip itself, but rather the size of the appellant's legs and her lack of flexibility. Thus, the preponderance of the evidence has not shown that a compensable evaluation under the applicable Diagnostic Code for the hip-thigh is warranted, and the service connection stress fracture, bilateral hip-thigh is no more than 0 percent disabling. See 38 C.F.R. § 4.31; Part 4, Diagnostic Code 5262. Additionally, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45). The Board finds that the evidence has shown the appellant does not have any functional impairment to warrant a compensable evaluation for bilateral hip-thigh. The appellant has alleged that she has pain. The VA examiner stated that there was no significant abnormalities and that the decreased range of motion in the hips was due to the appellant's legs and lack of muscular flexibility. Additionally, the VA examiner stated that there was no evidence of myopathy. The Board is aware that motor strength was found to be 4/5 in the bilateral hip, however, in the recent examination, she was not shown to have any functional impairment. The Board finds that the April 1997 examination is more probative of the appellant's current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). There is no competent evidence of a finding of periarticular pathology in the bilateral hip-thigh to warrant a compensable evaluation. See 38 C.F.R. § 4.59 (1999). Additionally, x-rays of the pelvis were within normal limits. Considering pain, weakness, incoordination and excess fatigability; the condition does not approximate the criteria for a compensable evaluation based on functional loss. See 38 C.F.R. §§ 4.40, 4.45. Although the appellant has reported pain, the Board concludes that the findings of the skilled examiner are more probative than her subjective statements. Accordingly, the Board finds that the service-connected stress fracture, bilateral hip-thigh, is no more than 0 percent disabling. The appellant is competent to report her symptoms; however, to the extent that she has described pain and functional impairment as to her hips and thighs, the medical findings do not support her contentions. The Board attaches far greater probative weight to the clinical findings of a skilled, unbiased professional than to the appellant's statements, even if sworn, in support of a claim for monetary benefits. Taking the appellant's contentions into account and the medical findings, an evaluation in excess of 0 percent for stress fracture, bilateral hip-thigh, is not warranted. To this extent, the preponderance of the evidence is against her claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). II. Stress fracture, bilateral thigh-knee After having reviewed the evidence, the Board concludes that the preponderance of the evidence is against a compensable evaluation for stress fracture, bilateral thigh-knee. In June 1996, she had full range of motion in the knees and 5/5 motor strength. The examiner noted that there was no erythema, mass, deformity, or edema. In April 1997, the VA examiner stated that there was no swelling, deformity, angulation, false motion, or intra-articular movement. Range of motion was 0 degrees to 120 degrees in the right knee and 0 degrees to 135 degrees in the left knee. The VA examiner stated that a full body nuclear medicine bone scan was found to be within normal limits and that x-rays of the knees were within normal limits. The VA examiner stated that the appellant had no significant abnormalities found except slight decreased range of motion in the knees; however, she related the decreased range of motion to the appellant's size of her legs and the lack of muscular flexibility. The Board finds that such clinical findings are indicative of a noncompensable evaluation. See 38 C.F.R. § 4.31; Part 4, Diagnostic Codes 5257, 5260. A compensable evaluation under Diagnostic Codes 5260 or 5257 is not warranted. There is no evidence of limitation of flexion to 45 degrees or slight recurrent subluxation or lateral instability to warrant a 10 percent evaluation. See 38 C.F.R. Part 4, Diagnostic Codes 5257, 5260. The VA examiner noted that the appellant had limited range of motion in her knees, but stated that such not due to the knee itself, but rather the size of the appellant's legs and her lack of flexibility. Thus, the preponderance of the evidence has not shown that a compensable evaluation under the applicable Diagnostic Codes is warranted, and the service- connected stress fracture, bilateral thigh-knee is no more than 0 percent disabling. See 38 C.F.R. § 4.31; Part 4, Diagnostic Codes 5257, 5260. Additionally, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45). The Board finds that the evidence has shown the appellant does not have any functional impairment related to her service-connected stress fracture, bilateral thigh-knee, to warrant a compensable evaluation. The appellant has alleged that she has pain. The VA examiner, however, stated that there was no significant abnormalities and that the decreased range of motion in the knees was due to the appellant's legs and lack of muscular flexibility. The VA examiner stated that there was no evidence of myopathy. Additionally, when motor strength was tested in the knees in service in June 1996, the examiner stated that it was 5/5. There is no competent evidence of a finding of periarticular pathology in the bilateral thigh-knee to warrant a compensable evaluation. See 38 C.F.R. § 4.59 (1999). X-rays taken of the knees were within normal limits, and a full body bone scan was within normal limits. Considering pain, weakness, incoordination and excess fatigability; the condition does not approximate the criteria for a compensable evaluation based on functional loss. See 38 C.F.R. §§ 4.40, 4.45. Although the appellant has reported pain, the Board concludes that the findings of the skilled examiner are more probative than her subjective statements. Accordingly, the Board finds that the service- connected stress fracture, bilateral thigh-knee, is no more than 0 percent disabling. The appellant is competent to report her symptoms; however, to the extent that she has described pain and functional impairment as to her thighs and knees, the medical findings do not support her contentions. The Board attaches far greater probative weight to the clinical findings of a skilled, unbiased professional than to the appellant's statements, even if sworn, in support of a claim for monetary benefits. Taking the appellant's contentions into account and the medical findings, an evaluation in excess of 0 percent for stress fracture, bilateral thigh-knee, is not warranted. To this extent, the preponderance of the evidence is against her claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). III. Stress fracture, bilateral ankle After having reviewed the evidence, the Board concludes that the preponderance of the evidence is against a compensable evaluation for stress fracture, bilateral ankle. Although tenderness has been reported in the bilateral ankle, she had full range of motion in the ankles with 5/5 motor strength in June 1996. The examiner stated that there was no erythema or edema. When examined in April 1997, the VA examiner stated that the appellant had 10 degrees dorsiflexion and 35 degrees of plantar flexion in the right ankle and 5 degrees of dorsiflexion and 40 degrees of plantar flexion in the left ankle. Supination and pronation of both ankles was within normal limits. The VA examiner stated that a full body bone scan taken in October 1996 was within normal limits. Following examination, the VA examiner stated that the appellant's slight decrease in the range of motion in the right and left ankles was not significant and that she thought it was questionable. The Board finds that such clinical findings are indicative of a noncompensable evaluation. See 38 C.F.R. § 4.31; Part 4, Diagnostic Code 5271. A compensable evaluation under Diagnostic Code 5271 is not warranted. There is no evidence that the appellant has moderate limitation of motion of the ankles. The VA examiner noted in the April 1997 examination report that the appellant's limitation of motion in the ankles was "small." 38 C.F.R. Part 4, Diagnostic Code 5271. Thus, the preponderance of the evidence has not shown that a compensable evaluation under Diagnostic Code 5271 is warranted, and the service-connected stress fracture, bilateral ankle, is no more than 0 percent disabling. See 38 C.F.R. § 4.31; Part 4, Diagnostic Code 5271. Additionally, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45). The Board finds that the evidence has shown that the appellant does not have any functional impairment to warrant a compensable evaluation. The appellant has alleged that she has pain. In June 1996, she had full range of motion in the ankles and 5/5 motor strength. The VA examiner stated that there was no significant abnormalities and that the decreased range of motion in the ankles was "such a small decrease" that it was questionable. The VA examiner stated that there was no evidence of myopathy. There is no competent evidence of a finding of periarticular pathology in the bilateral ankle to warrant a compensable evaluation. See 38 C.F.R. § 4.59 (1999). Considering pain, weakness, incoordination and excess fatigability; the condition does not approximate the criteria for a compensable evaluation based on functional loss. See 38 C.F.R. §§ 4.40, 4.45. Although the appellant has reported pain, the Board concludes that the findings of the skilled examiner are more probative than her subjective statements. Accordingly, the Board finds that the service- connected stress fracture, bilateral ankle, is no more than 0 percent disabling. The appellant is competent to report her symptoms; however, to the extent that she has described pain and functional impairment as to her ankles, the medical findings do not support her contentions. The Board attaches far greater probative weight to the clinical findings of a skilled, unbiased professional than to the appellant's statements, even if sworn, in support of a claim for monetary benefits. Taking the appellant's contentions into account and the medical findings, an evaluation in excess of 0 percent for stress fracture, bilateral ankle, is not warranted. To this extent, the preponderance of the evidence is against her claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). IV. Stress fracture, bilateral foot After having reviewed the evidence, the Board concludes that the preponderance of the evidence is against a compensable evaluation for stress fracture, bilateral foot. The appellant has stated that she cannot walk for long distances. In June 1996, the examiner stated that there was no erythema or edema. When examined in April 1997, the VA examiner stated that a full body bone scan revealed normal findings, as did x-rays taken of the feet. There have been no objective clinical findings that would establish a compensable evaluation for stress fracture, bilateral foot. The Board finds that the clinical findings of record are indicative of a noncompensable evaluation. See 38 C.F.R. § 4.31; Part 4, Diagnostic Code 5284. A compensable evaluation under Diagnostic Code 5284 is not warranted. There is no evidence of any residuals of a foot injury to either foot, even if evaluated by analogy, to warrant a 10 percent evaluation, which contemplates a moderate foot disability. See 38 C.F.R. Part 4, Diagnostic Code 5284. X-ray evidence of the feet have revealed normal findings. Thus, the preponderance of the evidence has not shown that a compensable evaluation under the applicable Diagnostic Code for the foot is warranted, and the service- connected stress fracture, bilateral foot, is no more than 0 percent disabling. See 38 C.F.R. § 4.31; Part 4, Diagnostic Code 5284. Additionally, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40, 4.45). The Board finds that the evidence has shown the appellant does not have any functional impairment to warrant a compensable evaluation. The appellant has alleged that she has pain in her feet. The VA examiner stated that there was no significant abnormalities. She noted that a full body bone scan revealed normal findings, as did x-rays taken of the appellant's feet. Additionally, she stated that there was no evidence of myopathy. There is no competent evidence of a finding of periarticular pathology in the bilateral foot to warrant a compensable evaluation. See 38 C.F.R. § 4.59 (1999). Considering pain, weakness, incoordination and excess fatigability; the condition does not approximate the criteria for a compensable evaluation based on functional loss. See 38 C.F.R. §§ 4.40, 4.45. Although the appellant has reported pain, the Board concludes that the findings of the skilled examiner are more probative than her subjective statements. Accordingly, the Board finds that the service- connected stress fracture, bilateral foot, is no more than 0 percent disabling. The appellant is competent to report her symptoms; however, to the extent that she has described pain and functional impairment as to her feet, the medical findings do not support her contentions. The Board attaches far greater probative weight to the clinical findings of a skilled, unbiased professional than to the appellant's statements, even if sworn, in support of a claim for monetary benefits. Taking the appellant's contentions into account and the medical findings, an evaluation in excess of 0 percent for stress fracture, bilateral foot, is not warranted. To this extent, the preponderance of the evidence is against her claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Compensable evaluations for stress fracture of bilateral hip- thigh, bilateral thigh-knee, bilateral ankle, and bilateral foot are denied. Member, Board of Veterans' Appeals