Citation Nr: 0002796 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 98-00 353A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased rating for right ankle disability, a residual of right tibia and fibula fractures, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for other residuals of right tibia and fibula fractures with scarring and shortening, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) following a September 1997 decision of the Manchester, New Hampshire, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied a claim for a disability rating in excess of 30 percent for service- connected residuals of right tibia and fibula fractures with scarring and shortening. The Board remanded the veteran's appeal in May 1999 for further evidentiary development. The RO thereafter, by a September 1999 decision, granted a separate 10 percent rating for a right ankle disability, which disability was previously treated as part of the veteran's right tibia/fibula disability. FINDINGS OF FACT 1. The veteran's service-connected right ankle disability is manifested by loss of at least 20 degrees of dorsiflexion with pain on flare-ups and on extended use. 2. Other residuals of right tibia and fibula fractures are manifested by pain, limitation of knee flexion to 130 degrees, extension fixed at 10 degrees, and an additional twenty to thirty percent reduction in motion with flare-ups. CONCLUSIONS OF LAW 1. An increased (20 percent) rating for service-connected right ankle disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71, 4.71a (Diagnostic Code 5271) (1999). 2. An increased rating for other residuals of right tibia and fibula fractures with scarring and shortening is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.71, 4.71a (Diagnostic Codes 5261, 5262, 5275) 4.118 (Diagnostic Codes 7803, 7804) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran and his representative contend that the veteran's service-connected right tibia/fibula disability and right ankle disability are manifested by increased symptomatology, including pain and decreased range of motion that interfere with his ability to function. It is also requested that the veteran be afforded the benefit of the doubt. I. The Facts VA treatment records, dated from August 1997 to December 1997, and private treatment records, dated from March 1976 to February 1998, show the veteran's complaints, diagnoses, and/or treatment for right leg pain. These treatment records also reveal that the veteran has been given a number of different medications to control right leg pain including Codeine, Percocet, Loracid, and Darvon. They also indicate that he wore an orthopedic boot on his right foot. They also suggest that the Codeine was ineffective in controlling the pain. Additionally, the records indicate that the veteran has reported problems performing a job as a mason because he can no longer climb up and down a ladder. See treatment records from Norwich Orthopedic Group, dated from March 1976 to June 1977; private treatment records from George E. Quinn, M.D. dated in April 1996, May 1997, June 1997 to August 1997, and February 1998; and VA treatment records dated from August 1997 to December 1997. The June 1977 treatment record from Norwich Orthopedic Group also shows that the veteran's right leg pain leads to lost work, that the skin at the old fracture site was badly damaged, and that the veteran had both loss of bone and subcutaneous tissue at the site of the old fracture. Dr. Quinn, in his August 1997 letter, also opined that the veteran's right leg was disfigured. Moreover, October 1997 VA treatment records show that the veteran could not "dorsiflex" his right foot. At a September 1997 VA examination, the veteran complained of chronic right leg pain. On examination, range of motion of the right knee was from 0 degrees of extension to 110 degrees of flexion. The right leg had a scar and skin graft at the area of the fracture that was non-tender, but showed subjective evidence of pain on compression. There was loss of tissue substance in the right calf, the right leg was one and a half inches shorter than the left leg, and the skin graft donor site on the left thigh was dimpled yet asymptomatic. There was numbness of the skin surrounding the scar. The right great toe had no active extension. Range of motion studies of the right ankle was from 10 degrees of dorsiflexion to 45 degrees of plantar flexion. Right knee x-rays revealed some features suggestive of minimal osteoarthrosis and vascular calcification. Tibia and fibula x-rays revealed evidence of a previous extensive trauma, with healed fractures at two sites in the fibula in mid-shaft and of the distal third of the tibia. There was slight non-apposition at the fracture site, but alignment was almost anatomical. Distally, there was osteopenia consistent with disuse. Right ankle x-rays revealed disuse osteopenia on both sides of the joint, but no post-traumatic features. The impression was that there were no abnormalities of the right ankle joint. The veteran testified at a personal hearing at the RO in January 1998. He testified that he had chronic pain in his right leg, from his knee down to his foot, that pain had increased over time, that his leg became easily fatigued, and that the foregoing symptoms interfered with his job as a mason. He reported that his pain increased when he placed all his weight on his right leg. He also reported that it was almost impossible for him to work on roofs anymore because he could not dosiflex his right foot and he had a problem climbing up and down ladders - going up was worse because he had increased difficulty bending the knee. He next testified that he received treatment approximately once a month from a Dr. Quinn - twice a month when his problem really bothered him. Dr. Quinn treated him with pain medications (Loracet and Percocet) and a muscle relaxant (Xanax) as well as self-hypnosis. The veteran also reported that his right leg, and sometimes his entire body, would shake uncontrollably and the Xanax would help stop the shaking. As to wearing a brace, the veteran reported that a Dr. Lapp talked to him about wearing one but the veteran believed that it would only aggravate his right knee pain. Next, the veteran reported that he wore a right orthopedic shoe and occasionally used a cane or crutch. He also reported that the weight of the orthopedic shoe aggravated his right knee problems. Subsequently, at a June 1998 VA examination, the veteran complained of increasing pain in the right foot over approximately the previous ten years. He complained that the pain was made worse by extended periods on his feet. Both rest and the use of corrective shoes provided some relief from his pain. The veteran also complained that the problem that he had with his right leg and foot had caused him to be unable to climb ladders and had adversely affected his ability to balance, which in turn adversely affected his job as a mason. On examination, the veteran was tender to palpation over both the medial and lateral aspects of the right ankle and walked with a limp. Thereafter, at a September 1999 VA examination, the veteran complained that his symptoms were getting worse. Specifically, he reported that he had right knee and ankle pain, limitation of motion, weakness, stiffness, and occasional swelling. However, there was no heat, redness, instability, locking, or giving way. The veteran also reported flare-ups that occurred every two days and lasted approximately one day. He also described his pain as severe pain which was precipitated by bending, stooping, standing, walking, and a change in the weather. Next, he reported that he took Percocet, four tablets daily, for pain in his right lower extremity. He indicated that he was a self-employed mason, but was only able to work approximately 15 to 20 hours a week due to the pain. On examination, gait was antalgic and, while walking, he had pain in the right lower extremity with each step, used a cane, and had definite genu varum. Moreover, he had extreme difficulty going downstairs. Examination of the right lower extremity showed a five by three inch scar in the lateral aspect of the calf and a four-and-a-half inch scar on the lateral half of the calf. There was also a six inch scar in the anterior tibia area. The scars were well healed and no definite tenderness was present. However, there was slight loss of tissue and disfiguration. There was also a one-and- a-half inch by one inch bony protrusion on the lower third of the right lower extremity that was non-tender. There was definite disfiguration of the right lower extremity on the lower one third. There was also obvious shortening of the right lower extremity. (Specifically, the length of the left lower extremity was 35.5 inches and the right was 33.5 inches.) The left thigh had two skin graft donor sites. Range of motion studies showed the right knee had 130 degrees of flexion with pain and was fixed at 10 degrees of extension. The examiner opined that the veteran experienced pain on flexion and extension of the right knee. Range of motion studies showed the right ankle had 0 degrees of dorsiflexion and 45 degrees of plantar flexion. X-rays of the right knee, ankle, and tibia and fibula showed no changes since earlier x-rays in September 1997. Specifically, right knee x-rays revealed some features suggestive of minimal osteoarthrosis and vascular calcification. X-rays of the tibia and fibula revealed evidence of a previous extensive trauma, with healed fractures at two sites along the mid-shaft of the fibula and the distal third of the tibia. There was slight non- apposition at the fracture site, but alignment was almost anatomical. Distally, there was osteopenia consistent with disuse. The impression was that there was a history of healed fractures of the tibia and fibula without significant abnormality of alignment or evidence of disuse osteopenia. Right ankle x-rays revealed disuse osteopenia on both sides of the joint, but no post-traumatic features. The impression was that there were no abnormalities of the right ankle joint. A bone scan revealed soft tissue inflammation of the right knee with a low probability of osteomyelitis. The attached photograph showed the veteran had two large scars below the knee on his right leg. The VA examiner opined that: [o]n examination of the right lower extremity, there was the presence of persistent pain in the lower tibia area. There was no incoordination but there was weakness and fatigability of the right knee and right ankle. The right knee was fixed in 10 degrees extension. There was limitation of dorsiflexion of the right ankle. The above findings are supported by objective evidence and are consistent with the history and pathology of disability. I did not see the patient during a flare-up but the above could significantly limit functional ability during flare-ups or when the right leg is used repeatedly over a period of time. [A]dditional range of motion lost would be approximately 20-30%. Examination of the postoperative scars . . . [disclosed some] . . . tissue loss but nourishment was adequate. There was no ulceration. The scars were not tender or painful on touch. II. Analysis Disability evaluations are determined by the application of a schedule of ratings that is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (1999). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). Moreover, when the record reflects that the veteran has multiple problems because of a service-connected disability, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) in the case of Esteban v. Brown, 6 Vet. App. 259, 261 (1994), said that, while evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided, it was possible for a veteran to have "separate and distinct manifestations" from the same injury, permitting different disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. A. Right Ankle Disability The veteran has been service connected for a right ankle disability and found to be 10 percent disabling under Diagnostic Code 5262 (impairment of the tibia and fibula). See RO decision entered in September 1999. Given the 10 percent disability rating currently assigned for the veteran's service-connected right ankle disability, the veteran will only be entitled to an increased rating under potentially applicable Diagnostic Codes if he has ankylosis with the ankle fixed in plantar flexion at an angle of less than 30 degrees (20 percent), or the ankle fixed in plantar flexion at an angle between 30 degrees and 40 degrees, or in dorsiflexion at an angle between 0 degrees and 10 degrees (30 percent), or at greater angles, or an abduction, adduction, inversion, or eversion deformity (40 percent) (Diagnostic Code 5270); or marked limitation of motion (20 percent) (Diagnostic Code 5271); or ankylosis of the subastragalar or tarsal joint with the joint fixed in a poor weight-bearing position (20 percent) (Diagnostic Code 5272); or malunion of the os calcis or astragalus with marked deformity (20 percent) (Diagnostic Code 5273); or an astragalectomy (20 percent) (Diagnostic Code 5274); or impairment of the tibia and fibula with moderate ankle disability (20 percent), with marked ankle disability (30 percent), or nonunion of the tibia or fibula with loose motion requiring a brace (40 percent) (Diagnostic Code 5262). 38 C.F.R. § 4.71a (1999). Given the evidence described above, especially the loss of dorsiflexion and the objective evidence of pain reported by the June 1998 and September 1999 VA examiners, especially with flare-ups or repeated use, the Board finds that a 20 percent rating may be assigned for disability that equates to "marked" limitation of ankle motion. Diagnostic Code 5271. Specifically, at the most recent VA examination, the examiner opined that the range of motion of the veteran's right ankle was 0 degrees of dorsiflexion and 45 degrees of plantar flexion. Tellingly, normal range of motion the ankle is 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Template II. Moreover, this VA examiner opined that range of motion would be further reduced by approximately 20 to 30 percent by ". . . flare-ups or when the right leg is used repeatedly over a period of time." Consequently, the Board finds that the loss of motion seen at the September 1999 VA examination more nearly equates to the criteria for "marked" limitation of motion than "moderate." Diagnostic Code 5271. Therefore, the Board finds that the evidence, both positive and negative, is at least in equipoise, and granting the veteran the benefit of the doubt in this matter, concludes that a higher evaluation under limitation of motion criteria due to pain is warranted. The Board is assigning the foregoing increased evaluation, in part, because of the veteran's repeated complaints of pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain); 38 C.F.R. § 4.40 (1999). However, a greater rating is not warranted. Specifically, the Board has considered whether the veteran is entitled to a higher evaluation under any of the other Diagnostic Codes used to rate an ankle disorder. First, the Board notes that ankylosis (ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992)) has not been shown. Johnston v. Brown, 10 Vet. App. 80 (1997). Second, the record on appeal does not show malunion of the os calcis, malunion of the astragalus, or that the veteran underwent an astragalectomy. See September 1997 and September 1999 right ankle x-rays. Consequently, higher schedular ratings are not warranted for the veteran's service-connected right ankle disability under Diagnostic Code 5270, 5273, 5273 or 5274. 38 C.F.R. § 4.71a (1999). While it might be argued that the veteran's ankle disability warrants a higher rating under Diagnostic Code 5262, the Board notes that both malunion and marked ankle disability have not been shown. Diagnostic Code 5262. Additionally, because the criteria of Diagnostic Code 5262 contemplates limitation of motion of the joint, a rating separate from the one assigned under Diagnostic Code 5271 may not be awarded. 38 C.F.R. § 4.14 (1999) (evaluation of the same manifestation under different diagnoses is to be avoided). B. Other Right Tibia/Fibula Fracture Residuals Historically, service connection has been granted for residuals of right tibia and fibula fractures with scarring and shortening and this disability had been evaluated as 30 percent disabling under Diagnostic Code 5262 (tibia and fibula impairment). See RO decisions entered in September 1974, September 1997, and September 1999. Given the 30 percent disability rating currently assigned for the veteran's service-connected tibia/fibula disability, the veteran will only be entitled to an increased rating under potentially applicable Diagnostic Codes if he has ankylosis of the knee with flexion between 10 degrees and 20 degrees (40 percent), with flexion between 20 degrees and 45 degrees (50 percent), or, if he has extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more (60 percent) (Diagnostic Code 5289); or limitation of extension of the knee to 30 degrees (40 percent) or limitation of extension of the knee to 45 degrees (50 percent) (Diagnostic Code 5261); or nonunion of the tibia or fibula with loose motion requiring a brace (40 percent) (Diagnostic Code 5262). 38 C.F.R. § 4.71a (1999). The Board first looks at the question of whether the veteran is entitled to an increased rating for ankylosis under Diagnostic Code 5256. Although the September 1999 examiner opined that the right knee was fixed at 10 degrees of extension, it was specifically noted that the veteran nevertheless had 130 degrees of flexion. Therefore, because the criteria for an increased rating for ankylosis of the knee requires that the knee be ankylosed between 10 degrees and 20 degrees of flexion, the veteran is not entitled to an increased rating for his right tibia/fibula disability under Diagnostic Code 5256. Next, the Board will consider whether the veteran is entitled to an increased rating under Diagnostic Code 5261. However, as stated above, range of motion studies at the veteran's September 1997 VA examination revealed right knee motion to be 0 to 110 degrees and at his September 1999 VA examination revealed right knee motion to be fixed at 10 degrees of extension and flexion was to 130 degrees. (Normal range of motion the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Template II.) Tellingly, the criteria for an increased rating for limitation of extension of the knee requires that flexion be limited to at least 30 degrees. Therefore, the veteran is also not entitled to an increased rating for his right tibia/fibula disability under Diagnostic Code 5261. Although higher evaluations may be assigned on account of functional losses that equate to disability contemplated by greater limitation of motion, DeLuca, supra, the salient point to be made in this regard is that even though he has pain, primarily with bending, consideration of §§ 4.40, 4.45 does not lead the Board to conclude that the functional losses he experiences equate to more than the level of disability contemplated by the 30 percent rating under Diagnostic Code 5262. The September 1999 VA examiner specifically reported that, while the veteran had painful motion, even with such pain, he nonetheless had flexion to 130 degrees and extension fixed at 10 degrees. The examiner opined that the veteran would likely experience approximately an additional twenty to thirty percent loss in motion with a flare-up. However, even when taking into account this additional twenty to thirty percent loss in motion during flare-ups, the reduction of the knee's flexion and extension would not entitle him to a rating greater than 30 percent under applicable rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261. Under Diagnostic Code 5260, flexion would have to be limited to at least 45 degrees for the veteran to be entitled to a compensable rating for the loss in motion. Similarly, under Diagnostic Code 5261, extension would have to be reduced to 30 degrees for the veteran to be entitled to an increased rating. Id. Accordingly, the veteran is not entitled to an increased rating for his right tibia/fibula disability, even when taking into account his complaints of pain. Next, the Board will consider whether the veteran is entitled to an increased rating under Diagnostic Code 5262. Significantly, the record is devoid of evidence that there is nonunion of the tibia and fibula. Specifically, while September 1997 and September 1999 VA x-rays revealed evidence of a previous extensive trauma, the fractures were healed and no significant abnormality of alignment was seen. Nothing in the record indicates that the veteran wears a brace. In fact, the veteran testified at his personal hearing that, not only did he not wear a brace, he believed that one would aggravate his condition. Accordingly, the veteran is not entitled to an increased rating for his right tibia/fibula disability under Diagnostic Code 5262. While it might be argued once again that the Board's analysis should include consideration of whether separate ratings are warranted for loss of motion under Diagnostic Code 5260 or 5261 and Diagnostic Code 5262, it should be pointed out that the currently assigned 30 percent for impairment of the tibia and fibula under Diagnostic Code 5262 contemplates various symptoms, including pain and limitation of motion. Therefore, assigning separate ratings under Diagnostic Code 5260 or 5261 would violate the rule against pyramiding. 38 C.F.R. § 4.14 (1999). In addition, because the record on appeal shows that the veteran was service-connected for "residuals" of his injury, the Board will consider whether he is entitled to any separate compensable rating for the scarring under either Diagnostic Code 7803 or 7804. See RO decision entered in September 1974; Esteban, supra; 38 C.F.R. § 4.118 (1999). Under Diagnostic Code 7803 scars that are superficial, poorly nourished, and with repeated ulceration, will be rated as 10 percent disabling. Under Diagnostic Code 7804 scars that are superficial, tender, and painful on objective demonstration, will be rated as 10 percent disabling. In this regard it should be noted that the June 1977 treatment record from Norwich Orthopedic Group reported that the skin at the old fracture site was badly damaged and that the veteran had both loss of bone and subcutaneous tissue at the site of the old fracture. Thereafter, the September 1997 VA examiner reported that the right leg had a scar and skin graft at the area of the fracture that was non-tender but, showed subjective evidence of pain on compression as well as loss of tissue substance in the right calf. Subsequently, an August 1997 letter from Dr. Quinn also reported that the veteran's right leg was disfigured. More recently, the September 1999 examiner reported that the right leg scars had tissue loss and the leg was disfigured. Nonetheless, the scars were not undernourished, had no ulceration, and were not tender or painful on touch. Therefore, because the veteran's scars are neither poorly nourished with repeated ulceration or tender and painful, a separate compensable rating is not warranted under Diagnostic Code 7803 or 7804. As for whether a separate rating may be assigned for leg shortening, the Board notes that a compensable rating is warranted under Diagnostic Code 5275 for shortening of up to 2 inches, which was noted in the veteran's case at the September 1999 examination. However, a rating for shortening of the lower extremity is not to be combined with other ratings for fracture in the same extremity. Diagnostic Code 5275. Consequently, given the 30 percent rating already assigned for tibia/fibula fractures, a separate rating for leg shortening is not warranted. Based on the arguments made at the veteran's January 1998 personal hearing, as well as claims made at his VA examinations, and reports in his private treatment records (i.e., he could not work full time as a mason due to the pain and weakness in his right ankle and knee) the Board has given consideration to the potential application of 38 C.F.R. § 3.321(b)(1) (1999). Although the veteran has described his right ankle and knee pain as being so bad that he can no longer work full-time as a mason, the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (1999). The current evidence of record does not demonstrate that his right ankle and knee problems have resulted in frequent periods of hospitalization or in marked interference with employment. § 3.321. It is undisputed that his service-connected disabilities have an adverse effect on employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (1999). Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule, the Board concludes that a remand to the RO for referral of these issues to the VA Central Office for consideration of extraschedular evaluations is not warranted. The Board, in reaching the conclusions above, has considered the veteran's arguments as set forth in his written statements to the RO as well as in personal hearing testimony. However, while a lay witness can testify as to the visible symptoms or manifestations of a disease or disability, his belief as to its current severity is not probative evidence because only someone qualified by knowledge, training, expertise, skill, or education, which the veteran is not shown to possess, must provide evidence regarding medical knowledge. See Bostain v. West, 11 Vet. App. 124 (1998); Espiritu v. Derwinski, 2 Vet. App. 492, (1992); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). As for the award of a 20 percent rating for ankle disability, the Board notes that this award does not violate the amputation rule of 38 C.F.R. § 4.68 (1999) which states that the combined rating for disabilities of an extremity shall not exceed the rating for amputation at the elective level. Specifically, the combined evaluations for disabilities below the knee shall not exceed 40 percent. § 4.68. However, in the veteran's case, the rating of 30 percent already assigned contemplates disability at level higher than "below the knee." Id. This is so because the rating under Diagnostic Code 5262 specifically contemplates right knee impairment. Therefore, as a result of the award of the 20 percent rating for the ankle disability, the veteran will have a combined 50 percent rating-30 percent for the tibia/fibula fracture residuals other than the ankle, 20 percent for the ankle, and 10 percent for the right foot (awarded by the RO in October 1998). 38 C.F.R. § 4.25 (1999). ORDER An increased (20 percent) rating for a right ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. An increased rating for other residuals of right tibia and fibula fractures with scarring and shortening is denied. MARK F. HALSEY Member, Board of Veterans' Appeals