BVA9502066 DOCKET NO. 92-24 338 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES Entitlement to an increased rating for residuals of a right ankle sprain, rated as 10 percent disabling. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Marshall O. Potter, Jr., Associate Counsel INTRODUCTION The veteran served on active duty from June 1962 to June 1965. This appeal comes to the Board of Veterans' Appeals (Board) from October 1991, February 1992, and later decisions by the Department of Veterans Affairs (VA) Phoenix, Arizona, Regional Office (RO) which denied the veteran's claims for a permanent and total disability rating for non-service-connected pension purposes and an increased evaluation for his service-connected right ankle sprain. In the veteran's substantive appeal received in September 1992, he referred to a back disability which he claimed was incurred in service, and dizzy spells which he claimed were related to an inability to wear glasses, which he claimed was due to his service-connected "eye injury". The United States Court of Veterans Appeals (COVA) has held that the VA must review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal. Myers v. Derwinski, 1 Vet.App. 127, 129 (1991); see, EF v. Derwinski, 1 Vet.App. 324, 326 (1991). These matters are not inextricably intertwined with the issues on appeal, and are therefore referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his right ankle disability is of such severity as to warrant a higher evaluation. He argues that if all his disabilities, both service connected and non-service connected, are considered in their totality, they are of such severity as to prevent him from obtaining and engaging in substantially gainful employment. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an increased rating for his service-connected right ankle disability and against the claim for a permanent and total disability rating for pension purposes. FINDINGS OF FACT 1. The veteran's right ankle disability causes no limitation of motion, but there is pain on motion, and medial and lateral tenderness, amounting to not more than moderate impairment. 2. The veteran was born in September 1938, has 60 college credit hours and has employment experience in various jobs including a ranch hand, security guard, social worker and field coordinator. He last worked full time in 1990. 3. The veteran's chronic disabilities are residuals of a right ankle sprain; a low back disability including sacroiliac strain with characteristic pain on motion, slight limitation of motion of the lumbar spine and mild disc impairment. 4. The veteran has no objective signs of residuals of pubic symphysis diastasis, but has subjective complaints of pain. 5. The veteran's right calf muscle impairment causes no more than a slight impairment of Muscle Group XI. 6. The veteran's left foot disability is manifested by signs of calcaneal spurs and hammertoes on the fourth and fifth digits. 7. Any residuals of a head injury the veteran may have are currently asymptomatic. 8. The veteran has bilateral vision of 20/20. 9. The veteran's combined schedular disability evaluation is 30 percent; he does not have a permanent loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes; he is not permanently helpless or permanently bedridden; and his permanent disabilities do not prevent him from engaging in all types of substantially gainful employment consistent with his age, education and work history. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a right ankle sprain have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 4.7, and Part 4, Code 5271 (1993). 2. The requirements for a permanent and total disability rating for pension purposes have not been met. 38 U.S.C.A. §§ 1502, 1521 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.15, 4.16, 4.17 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran was born in September 1938, and has the requisite active service for pension purposes during the Vietnam Era. He reportedly has a GED diploma and 60 hours of college education. His work experience consists of a security guard, ranch hand, field representative or worker, interviewer, welfare eligibility worker and social worker. He last worked in 1990. The veteran's service medical records show that at the time of his entry onto active duty, he gave a history of headaches and dizzy spells prior to service. While on active duty, he incurred a right ankle sprain in August 1962 that caused acute and transitory minimal tenderness and swelling. In November 1962, he complained of lightheadedness. In May 1963, he suffered a 3- centimeter laceration just above the left eye when struck by a steel helmet. He complained of being dizzy. He also incurred a right leg bruise in December 1963. In August 1964, he reported injuring his leg and left knee during a jump. He complained of headaches in February 1965 as a result of being hit on the head by a rifle butt. At a neurological evaluation in March 1965, he complained of dizziness and lightheadedness. He gave a history of having headaches and dizziness prior to service. A physical examination conducted in March 1965 in connection with his separation from service showed the face, neck and scalp to be normal. A neurological examination was entirely normal. His lower extremities were normal as well as his spine. Medical records of the Public Health Service at Chinle, Arizona, show that the veteran received medical treatment at that facility between September 1965 and September 1980. Included in those records are notations that in December 1971, he complained of right calf pain of seven years' duration and that in March 1974, he complained of a backache as the result of pulling a muscle. His right leg muscle was tender. The Kayenta, Arizona, Public Health Service medical records between 1973 and 1978 show the veteran complained of headaches in 1978 and that a diagnosis of sinusitis was made. F. Wayne Goforth, D.C., examined the veteran in March 1981. The doctor diagnosed the veteran as having a 25 percent spondylolisthesis complicated by severe cervicodorsal and lumbosacral sprains. He reported the veteran's X-ray films revealed ligamentous damage and "uncompensated subluxation configurations" in those areas along with marked loss of both cervical and lumbar lordosis. The doctor was of the opinion that the veteran's symptoms would improve with chiropractic treatment. He submitted an opinion the veteran could anticipate future recurrence of pain in both the cervicodorsal and lumbosacral regions. The veteran underwent a VA examination in October 1981. He gave a history of right ankle and right calf injuries while on active duty. He gave a history of numbness in the right ankle and back pain. On examination, the right calf muscles were tight. The right calf circumference was one-quarter inch smaller than the left. He lacked 20 percent of dorsiflexion of the right foot. Soleus muscles appeared tight. There was 20 percent of plantar flexion of the foot. He had 20 percent of flexion of the neck. The extension of the neck was normal. He lacked 15 percent of rotation of the neck, bilaterally. He was able to bend forward to 50 degrees; 15 degrees of side-to-side motion and 10 degrees of extension. The X-ray films of the lumbar spine were interpreted as showing a Grade I spondylolisthesis at L5 - S1. A x-ray film of the right ankle was interpreted as being normal except for calcification. The impressions were residuals of a right ankle injury, residuals of a right calf injury with shortening of those muscles and chronic spine strain with Grade I spondylolisthesis at L5 - S1. At a hearing before a rating board at the RO in November 1982, the veteran stated that he could not get a good job because of injuries he sustained in service. At that time he submitted affidavits from an acquaintance relative to treatment by medicine men and written statements by his father, sister, an acquaintance and employer supervisors that the veteran had trouble with his right ankle, leg, back and neck. It was reported that the veteran's physical activities were restricted. Also submitted was a photocopy of a report from James A. Mertz, D.O., which referred to X-rays of the cervical and lumber spines and showed disc space narrowing and osteophy-tosis in both areas. Also noted were calcific changes in the right foot The veteran's spouse declined to make any statement. Steven Genheimer, M.D., rendered medical treatment to the veteran in January 1984 for complaints of headaches that he reported had been a problem since 1963. On examination, the doctor reported the veteran had otitis media, an upper respiratory infection and sinusitis. Medical records from the Gallup, New Mexico, Public Health Service Indian Hospital show medical treatment was rendered to the veteran between February 1983 and April 1986 for complaints of headaches, dizziness and blurred vision. It was noted on the optometry examination in July 1985 that there was no sign of prior trauma. An eye examination in April 1986 showed the veteran's vision in both eyes to be 20/20. At that time the veteran continued his complaints of eye pain. Medical records from this facility also show that between June 1985 and October 1986 the veteran had a bone spur of the left great toe in August 1986. X-ray films of both feet at that time were interpreted as showing no evidence of fracture, dislocation or bony pathology. In February 1991, the veteran was admitted to the Rehobeth- McKinley Christian Hospital where he underwent surgery for a fracture of the pubic symphysis of the pelvis, incurred in a horseback riding accident. X-rays revealed the symphysis pubis originally had a width of 4 centimeters. There was also subluxation of the left sacroiliac joint. After the surgical procedure was performed, the symphysis pubis was no longer widened. The left sacroiliac joint had been reduced. The X-rays resulted in a diagnosis of marked improvement of symphysis pubis and left sacroiliac joint status. He continued to receive physical therapy at the Lovelace-Gallup Medical Group and was subsequently transferred to the Chinle Public Health Service Hospital for the removal of the pins that had been inserted to reduce the separation. Between July 1991 and December 1991, the veteran received rehabilitation therapy at Chinle, Arizona, Public Service Health Hospital. Those records show that in August 1991, it was noted the veteran reported he had been running and working out. The veteran underwent a VA examination in April 1992. He reported that he had to be driven to this examination because of difficulty using his right foot and ankle. On examination, he was observed to limp on the right but use no walking device. He had difficulty hopping on his right foot but could hop on his left. He could heel and toe walk. His knee, calf and thigh measurements were equal. There was sciatic notch tenderness on the right but not on the left. There was no muscle spasm. The straight leg raising test was normal. Knee jerks and ankle jerks were two plus and equal. There was no sensory deficit. Motor strength was 5/5. Forward flexion was accomplished to 90 degrees to within 1 1/2 inches of the floor. Lateral flexion, rotation and backward extension of the lumbar spine were normal. There was normal range of motion in the right ankle and right subtalar joint. Pain accompanied this motion. There was tenderness of the right ankle both medially and laterally. There was also metatarsalgia by squeeze test on the right foot but not on the left. X-ray films of the right ankle were interpreted as showing possible cystic changes and possible old trauma with some periosteal reaction noted. X-rays of the feet showed a prosthesis in the first metatarsophalangeal joint of the left foot. There was minimal hallux valgus on the right with minimal narrowing of the first metatarsophalangeal joint space. There were hammertoes involving the 2nd, 3rd, 4th and 5th digits on the right and the 4th and 5th digits on the left. There were bilateral calcaneal spurs. X-ray films of the lumbar spine were interpreted as showing a Grade I spondylolisthesis, pars interarticular defect and some marginal hypertrophic changes. There was a narrowing of the intervertebral disc space. The impressions were chronic lumbosacral sprain, no radiculopathy; chronic right ankle pain, status post ankle sprains; and "painful right foot secondary to right ankle residual post injury pain." In June 1992, the veteran received medical treatment at the Gallup Indian Medical Center. At that time he complained of back and hip pain. On examination, a straight leg raising test was positive at 60 degrees on the right and 45 degrees on the left. There was some leg weakness on the left. He was able to reach forward to 12 inches from the floor. There was discomfort on motion at about the L1 area. The assessment was spondylolisthesis at the L5 - S1, Grade I; rule out herniated nucleus pulposus and possible early degenerative joint disease of the right hip. Steven Ritland, M.D., examined the veteran in August 1992. At that time the veteran had complaints of lower back pain and intermittent radiation down the right leg to the foot. On examination, there was slight weakness in the extensor hallucis and dorsiflexion on the right. Deep tendon reflexes were two plus on the patella and one plus on the Achilles. A magnetic resonance imaging showed a right L4-5 disc herniation, moderate in size and in a position to cause radiculitis. There was also bilateral spondylolisthesis at L5 associated with an L5 - S1 spondylolisthesis, Grade I and central disc protrusion at L5 - S1. The diagnosis was lumbar spondylolysis at L5, lumbar spondylolisthesis, Grade I and lumbar disc herniation at L4-5 with intermittent radiculopathy. The examiner reported that he would not recommend a return to heavy or strenuous physical activity or work. II. Analysis I find that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are not inherently implausible. The RO has obtained relevant evidence and there is no further duty to assist the veteran in developing facts pertinent to his claims. Id. A. Entitlement to an Increased Rating for Right Ankle Sprain Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Moderate limitation of motion of either ankle warrants a 10 percent evaluation. A 20 percent evaluation requires marked limitation of motion. 38 C.F.R. Part 4, Code 5271. The disability rating for the veteran's service-connected residuals of a right ankle sprain was raised to 10 percent after the Board, in its May 1983 evaluation, noted there was impaired dorsiflexion and plantar flexion as well as an enlargement of the ankle with X-rays showing other abnormalities of that joint. Apart from the complaints of right ankle impairment at the VA examination in April 1992, the medical evidence of record, subsequent to the VA examination in October 1981, does not show the veteran complained of or received medical treatment for a right ankle disability since that time. On examination in April 1992, the veteran's ankle was painful on motion. However, to receive a 20 percent evaluation in this case under Code 5271, the veteran would have to have a marked limitation of motion of the right ankle. The April 1992 VA examination showed he had a normal range of ankle motion. In addition, the August 1991 report that he was running as part of his therapy after his February 1991 horseback riding injury suggests that his ankle disability, while productive of pain, is not functionally limiting to more than a moderate degree. When considered in its totality, the evidentiary record of ankle impairment does not equate to or more closely approximate a marked degree of disability, which is the criteria for a 20 percent evaluation. Nor is there evidence that this disability is causing frequent hospitalization or marked interference with employment. Thus, I find a higher evaluation is not warranted. B. Entitlement to a Permanent and Total Disability Rating for Pension Purposes The veteran has been out of work since 1990. Unemployment by itself, however, does not establish unemployability. Moreover, non-service-connected pension requires that a veteran be both permanently and totally disabled. The legal criteria for this benefit are found in 38 U.S.C.A. §§ 1502, 1521; and 38 C.F.R. §§ 3.321, 3.340, 3.342, 4.15, 4.16 and 4.17. A precise legal test to qualify for the benefit will be discussed below but the percentage ratings for the veteran's permanent disabilities must first be reviewed. The current disabilities associated with the veteran's service- connected right ankle sprain have already been discussed in the preceding section. The current impairment is no more than moderate. That is the criterion for a 10 percent evaluation. The veteran's low back disability has been variously diagnosed as spondylolisthesis of the lumbar spine, sacroiliac strain and a herniated disc at the L4-5 level. Various codes may be used in assessing the low back disability. Under Code 5292, where the limitation of motion of the lumbar spine is slight, a 10 percent evaluation may be assigned. For a higher evaluation of 20 percent to be assigned, the limitation of motion must be moderate. In this case, the most recent VA examination showed he had an essentially normal range of back motion. Under Codes 5294 and 5295, where a sacroiliac injury or lumbosacral strain injury causes characteristic pain on motion, a 10 percent evaluation may be assigned. For a higher evaluation, there must be spasm on extreme forward bending and loss of lateral spine motion. The most recent VA examination showed no such spasm or loss of motion. Under Code 5293, a 10 percent evaluation will be assigned if there is a disc impairment that is mild. For a 20 percent evaluation of to be assigned, the impairment must be moderate. In this case, the medical treatment and examinations the veteran has undergone since his 1991 riding accident show he only has a slight limitation of back motion. Moreover, Dr. Ritland, while confirming the veteran has a herniated disc at the L4-5 level, does not describe recurring attacks indicative of a moderate disability. Neither is there any indication of neurological impairment. His ability to run and work out suggests that the back disability is no more than mild. Therefore, no matter how the low back disability is classified (Codes 5292, 5293, 5294 or 5295), I find that no more than a 10 percent evaluation for his low back disability is in order. 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 localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. 4.20. Where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. 4.31. The veteran's cervical spine spondylolisthesis was diagnosed many years ago. The medical evidence of record does not show he has had recent complaints indicative of even a slight limitation of motion or functionally limiting pain that would meet the criteria for a 10 percent evaluation under Code 5290. Thus, under the provisions of 38 C.F.R. § 4.31, a zero percent evaluation must be assigned for this disability. The veteran incurred a significant injury (4 centimeters separation) to his pubic symphysis in February 1992. However, the medical evidence of record shows that the operative procedure he underwent for this injury was successful. Moreover, physical therapy he received subsequent to this operation has speeded his recovery. We note that in August 1992 he was able to work out and run. Under the provisions of 38 C.F.R. § 4.20, we have considered this disability as being analogous to limitation of motion of the thigh as to extension, flexion, abduction, adduction and rotation. As such, I have considered Codes 5251, 5252 and 5253. Under Code 5251 the maximum evaluation is 10 percent. Under Code 5252, where there is limitation of thigh motion to 30 degrees, a 20 percent evaluation may be assigned. Under Code 5253, where there is limitation of abduction beyond 10 degrees, a 20 percent evaluation may be made. In reviewing the Public Service Health medical records subsequent to the operation, I do not find any such limitations. Moreover, at the VA examination in April 1992, it was noted that his thighs were equal, bilaterally. No reference to any pain, atrophy, or limitation of flexion, abduction, adduction or rotation was noted. The medical evidence of record contains no other mention of a thigh impairment. In light of these circumstances, I find the residuals of the pubic symphysis fracture to be no more than 10 percent disabling, on the basis of his subjective complaints of pain. The service medical records confirm the veteran suffered a laceration over the left eye that required suturing. However, at the time of examination in connection with his discharge from service, the face and scalp were observed to be normal. A 10 percent evaluation may be assigned where scarring causes moderate disfigure-ment (Code 7800) or where the scars are superficial, poorly nourished, ulcerated, tender and painful on objective demonstration (Codes 7803, 7804). The medical evidence of record does not support a finding as to either residual. Thus, a 10 percent evaluation for this disability is not warranted. The veteran was observed to have a right calf disability on a VA examination in October 1981. This disability will be considered as being analogous to a right leg disability evaluated under Code 5311. That code provides that where soleus muscles cause a slight impairment of propulsion, plantar flexion, stabilizing an arch, flexion of the toes or knees, a zero percent evaluation will be assigned. For a 10 percent evaluation, the impairment must be moderate. 38 C.F.R. § 4.20. Granted, tightness of the soleus muscles was observed on the VA examination in October 1981. However, the medical evidence of record reviewed since that time contains no reference to any impairment of walking, flexion of the toes or knee, or stability, other than that associated with the right ankle disability already rated at 10 percent. Thus, I find this equates to no more than a slight impairment as set forth in Code 5311 and a zero percent evaluation is assigned. The veteran asserts that he injured his left foot. Except for X-ray films taken in April 1992 of the left foot that show the veteran has hammertoes of the 4th and 5th toes as well as calcaneal spurring, the medical evidence of record does not show he has any left foot impairment. Specifically, even though he complained of foot problems at the June 1992 examination at the Lovelace-Gallup Indian Medical Center, the dorsiflexion of both feet was equal and no reference was made to any left foot impairment. I find this does not equate to a moderate foot disability, which is the criteria for a 10 percent evaluation under Code 5284. The veteran has a history of residuals of head injuries incurred even prior to service. Under Diagnostic Codes 8045-8101, where a brain disease due to trauma may cause migraine headaches with characteristic prostrating attacks averaging one in two months over the last several months, a 10 percent evaluation may be assigned. Where there are less frequent attacks, a zero percent evaluation will be assigned. Since the evidentiary record does not reveal the veteran has registered complaints of headaches or dizziness since 1986, I find that a zero percent evaluation for this impairment is warranted. It has been asserted that the veteran has visual complaints with blurring. I do not find that any complaints of this disorder have been registered since 1986. At that time, the veteran's visual acuity was 20/20, bilaterally. Under Diagnostic Code 6079 where the visual acuity is 20/40 in one eye and 20/40 in the other eye, a zero percent evaluation will be assigned. This is the lowest visual acuity that is taken into account in the rating schedule. Since his visual acuity is better than that, a compensable evaluation for this disability is not in order. Under the provisions of 38 C.F.R. § 4.25, all ratings must be combined and not rated separately. The combination for three 10 percent evaluations, when rounded off to the highest figure, is 30 percent. One way for a veteran to be considered to be permanently and totally disabled for pension purposes is to satisfy the "average" person test of 38 U.S.C.A. § 1502 and 38 C.F.R. § 4.15; Brown v. Derwinski, 2 Vet.App. 444 (1992); Talley v. Derwinski, 2 Vet.App. 282 (1992). To meet this test, the veteran must have the permanent loss of use of both hands or both feet, or one hand and one foot, or the permanent loss of sight of both eyes, or must be permanently helpless or permanently bedridden, or have permanent disabilities ratable singly or in combination as 100 percent. The veteran has none of these conditions, and his combined disability rating is only 30 percent. He does not satisfy the average person test for a permanent and total disability rating for pension purposes. Another way for a veteran to be considered permanently and totally disabled for pension is to qualify under the "unemployability test" of 38 U.S.C.A. § 1502(a) and 38 C.F.R. §§ 4.16, 4.17. A veteran may satisfy this test if he is unemployable by reason of one permanent disability rated at 40 percent or more, plus sufficient additional permanent disability to bring the combined rating to 70 percent or more. The veteran, with a combined rating of only 30 percent, clearly does not qualify. The unemployability test may also be satisfied on an extraschedular basis under 38 C.F.R. § 3.321(b)(2), when a veteran who is basically eligible fails to meet the disability percentage requirements but is found to be unemployable by reason of disabilities, age, occupational background and other related factors. The remainder of this discussion will focus on these particular questions. The veteran is in his mid fifties, has the equivalent of a high school education with additional college training and employment experience including various jobs as a "field coordinator" and social worker. His only significant disabilities are those of the lower back, the right ankle and the pubic symphysis. None of these are seriously disabling. His other disabilities are rated as noncompensable and present no significant functional impairment. The evidentiary record discloses no other chronic health problems that would have an adverse impact on his ability to work. Considering the veteran's age, educational and work background in conjunction with his relatively minor permanent disabilities, I find he is clearly capable of performing moderate physical labor. He has presented no medical opinion to support his claim that his combined disabilities prevent him from engaging in substantially gainful employment, let alone that he is permanently unemployable. The only opinion on point is that of Dr. Ritland, who advised against a return to heavy or strenuous physical work. Thus, I find that a permanent and total disability rating for pension purposes must be denied. ORDER Increased rating for residuals of a right ankle sprain is denied. A permanent and total disability rating for pension purposes is denied. J. E. DAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.