Citation Nr: 0004493 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 94-11 382 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to a compensable evaluation for residuals of a comminuted fracture of the proximal phalanx, left thumb. 2. Entitlement to a compensable evaluation for residuals of a stress fracture of the right tibia, with shin splints. 3. Entitlement to a compensable evaluation for residuals of a stress fracture of the left mid-forefoot. 4. Entitlement to a compensable evaluation for chronic shin splints, left leg. 5. Entitlement to a compensable evaluation for residuals of a fracture of the proximal phalanx, right middle finger, with exostosis and numbness. 6. Entitlement to a compensable evaluation for defective hearing, left ear. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from March 1982 to September 1992. This case was previously before the Board of Veterans' Appeals, and remanded for additional development in May 1997. The case has been returned to the Board for further appellate determination. In the course of this appeal the veteran raised the issues of service connection for tinnitus, residuals of right ankle sprain, and residuals of cold weather injury of the face. These issues were treated in an August 1999 rating action, and the veteran was so informed later that same month. There is no notice of disagreement in file for these issues, and they are not before the Board at this time. 38 C.F.R. § 20.200 (1999). FINDINGS OF FACT 1. The service-connected residuals of a stress fracture of the right tibia, with shin splints is principally manifested by complaints of minimal tenderness along the medial tibial shaft, and no x-ray finding of abnormality; no functional impairment was found. 2. The service-connected shin splints, left leg, is principally manifested by complaints of minimal tenderness along the medial tibial shaft, and no x-ray finding of abnormality; no functional impairment is demonstrated. 3. The service-connected residuals of a stress fracture of the left mid-forefoot is without residuals, and no functional impairment is demonstrated. 4. The service-connected defective hearing is productive of average pure tone threshold of 38 decibels, and speech discrimination of 96 percent for a level I numeric designation; the non-service connected right ear is assigned a level I numeric designation. CONCLUSIONS OF LAW 1. A compensable evaluation for residuals of a stress fracture of the right tibia, with shin splints is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 19919 & Supp. 1999); 38 C.F.R. § 4.71 Diagnostic Codes 5312, 5262 (1999) 2. A compensable evaluation for shin splints, left leg is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 19919 & Supp. 1999); 38 C.F.R. § 4.71 Diagnostic Codes 5299, 5312. 3. A compensable evaluation for residuals of a stress fracture of the left mid-forefoot is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 19919 & Supp. 1999); 38 C.F.R. § 4.71 Diagnostic Code 5284. 4. A compensable evaluation for defective hearing, left ear, is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 19919 & Supp. 1999); 38 C.F.R. § 4.85 REASONS AND BASES FOR FINDINGS AND CONCLUSION An allegation of increased disability establishes a well- grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); See also Jones v. Brown, 7 Vet. App. 134 (1994). At the time of assignment of an initial rating for a disability following an initial award of service connection, separate ratings can be assigned for separate periods of time based on the evidence of record from the time of the appellant's application shortly after separation from service. The assignment of separate ratings is a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Given the practice of staged ratings, and the evidence in the service medical records and post-service examination, containing material germane to the four issues, the Board will present the evidence, chronologically, in one body, to preserve continuity and for ease of review. Pertinent elements of evidence will then be discussed with review and analysis of each issue. Factual Background Service medical records show injury to the left foot in March 1983. There were x-ray studies for possible fracture, and the studies of the left foot were normal. The assessment was first degree strain interosseous muscles of the left foot. In July 1987 the veteran complained of pain the shins, right and left. The assessment was bilateral shin splints. In June 1988 he was seen for complaints of shin splints, right and left legs. X-ray studies, to rule out stress fracture, noted a question of callous building. Radiology consultation later in June noted possible subtle callous formation in the right proximal fibula and questionable irregularity of the left proximal fibula. Follow-up in July 1988 showed an assessment of shin splints. He was given a physical profile for 3 weeks. A bone scan in 1988 concluded that the veteran had markedly abnormal limited bone scan compatible with severe stress reactions bordering on a stress fracture in the right mid tibia as well as the left mid forefoot. The profile was extended for 2 weeks in August 1988. With the veteran's continuing complaints, follow-up in October 1988 resulted in an assessment of stress fracture mid right tibia, and left forefoot. Periodic physical examination in April 1989 noted history of shin splints in 1988, confirmed by bone scan, NCNS (no complaints no symptoms). Audiometry studies in 1990 showed decreased hearing acuity in the left ear. In March 1991 the veteran had complaints of pain in both knees, with numbness in the right leg when running the pertinent assessment was shin splints secondary to gastro (indecipherable word). He was profiled for 2 weeks for the knees. Audiology studies in May and June 1992 again reflected decreased high frequency hearing acuity in the left ear, with no measured frequency below 4 thousand hertz showing more that a 20 decibel loss at more than one frequency. At 4 thousand hertz, the decibel loss varied from 45 to 55. The veteran filed a claim for disability benefits in September 1992. By rating action in October 1992, service connection was granted for residuals of a comminuted fracture of the proximal phalanx, left thumb, rated noncompensable; residuals of a stress fracture of the right tibia, with shin splints, rated noncompensable; residuals of a stress fracture of the left mid-forefoot, rated noncompensable; chronic shin splints, left leg, rated noncompensable; residuals of a fracture of the proximal phalanx, right middle finger, with exostosis and numbness, rated noncompensable; and defective hearing, left ear, rated noncompensable. In hearing testimony in November 1995, the veteran reported that he had always had shin splints since basic training. He would be put on profile and when off profile he would run 6 miles cross country and the shin splints would get bad and he would go back on profile, Transcript (T.) p. 17. In service he was also found to have a stress fractures of both legs. Currently as a mechanic, standing on concrete 10 hours a day, he indicated his shins and ankles get painful. He also reported that the right was worse than the left, and that he would be going to see a podiatrist on "Monday," T. pp. 18 and 19. In regard to his hearing loss in the left ear, the best way to explain it was that he "can't hear too good." He could not hear against background noise, and he had problems with women's voices and with phone calls, T. pp. 19 and 20. During the November 1995 hearing the veteran also noted problems with the left forefoot. He said it was not as bad as the right but occasionally if he stepped on it wrong it bothered him. He also stated that it didn't hurt or bother him that much. When it did bother him it was tender and it might swell a little but with weight off of it the problem would resolve in a week, T. pp. 23 and 24. The veteran was informed that it was important that if he were examined on Monday, that any report of examination be submitted to the VA, and he responded in the affirmative. T. p. 27 Per the May 1997 remand, the veteran was contacted by letter in May 1997, and asked to provide the dates and places of treatment since service and to submit any treatment reports or doctor's statements. If he wanted the VA to secure such records, he should complete and return enclosed authorizations for release of information (VA Form 21-4142). There was no response from the veteran. The Board notes that related to the May 1997 remand, the veteran was again reminded that he did not have a representative, and information concerning appointment of a representative was provided in May 1997. The veteran was provided audiometry evaluation in August 1997. Pure tone thresholds in the service-connected left ear were 15 decibels at 1 and 2 thousand-hertz, 30 decibels at 3 thousand hertz, and 80 decibels at 4 thousand hertz. The pure tone threshold average was 38 decibels. For the non- service connected right ear, the pure tone thresholds were 20 decibels or less at 1, 2, and 3 thousand hertz, and 40 decibels at 4 thousand hertz, for an average of 21 decibels. Speech recognition was 96percent in both ears. When examined by the VA in August 1997, the veteran reported that in his job he stood on concrete all day and had tingling pain on the medial sides of both of his legs and some vague pain in his forefoot, particularly when he has been up and walking all day. He also reported a throbbing pain in the foot when he has been very active, and having to elevate the foot at the end of the day. Examination of both tibias showed no deformities and no swelling. There was some minimal tenderness bilaterally along the medial tibial shafts and none on the lateral tibial shafts. The left foot was examined and there were no deformities, tenderness, or swelling "whatsoever." Neurological evaluation showed the left foot to be well perfused with good pulses and normal capillary refill. X-ray studies in August 1997 revealed normal tibia and fibula bilaterally. The left foot was also found to be normal. The pertinent examination diagnoses were history of bilateral shin splints, both tibias, with minimal residuals now; and history of stress reaction, left forefoot without any residuals now. It was noted that range of motion loss for shin splints and left forefoot and particularly for the residuals of tibial fractures were not feasible or practical. Right Tibia, Left Leg Impairment of the tibia and fibula, malunion, with slight knee or ankle disability, warrants a 10 percent evaluation. 38 C.F.R. § 4.71 Diagnostic Code 5262 (1999). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1999). The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. No other numbers than these listed or hereafter furnished are to be employed for rating purposes, with an exception as described in this section, as to unlisted conditions. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded "5002-5289." In this way, the exact source of each rating can be easily identified. In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature. Residuals of diseases or therapeutic procedures will not be cited without reference to the basic disease. 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 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 (1999). Disability of the anterior muscles of the leg, Group XII, slight, warrants a noncompensable rating. When the impairment is moderate, a 10 percent rating is assigned. 38 C.F.R. § 4.73 Diagnostic Code 5312 (1999). Analysis The veteran's bilateral shin splints were a problem in 1987 and 1988, and received thorough evaluation, including a bone scan. The problem was essentially treated by physical profile restricting the veteran's activities. It is noted that the bone scan noted a severe stress reaction "bordering" on stress fracture in the right mid tibia. Thus, the October 1988 diagnosis of "stress fracture" of the right mid tibia was not an exact reflection of the bone scan findings. The shin splints resolved by 1989 as documented in the April 1989 examination when the veteran had no complaints and no symptoms. The next assessment of shin splints was in March 1991, when the veteran had bilateral knee complaints, and numbness in the right leg when running. Medical records for 1992 do not reflect any right tibia or shin splint treatment. Overall, the record does not reflect significant right tibia or shin splint problems for the veteran at the time of his release from service. While there is no specific rating code for the service- connected right mid tibia disorder or shin splints, they have been rated by analogy to impairment of the tibia and fibula, and muscle injury to the anterior muscles of the leg. The Board finds that the functions affected, anatomical localization, and symptomatology are closely analogous to the rating codes used, and are appropriate. Since service, although the veteran has complained of painful shins on standing all day, he has not provided any records of medical treatment for the right tibia or shin splints. He was advised to do so in the November 1995 hearing and again in May 1997. The veteran did not respond to the RO's request for additional medical information, and the Board has proceeded on the basis of the evidence of record as there is no indication that there are additional records which can be obtained without the veterans cooperation. The duty to assist is not a one-way street. The veteran cannot passively wait when he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 406 (1991). There is no record of right tibia or bilateral shin splint disability that would warrant a compensable evaluation from 1992 up to the VA examination in 1997. Specifically, the subjective complaints are not supported by objective findings. The VA examination in August 1997 showed minimal tenderness bilaterally along the medial tibial shafts. Otherwise the examination, including x-ray studies, was negative. No fracture of the right mid tibia was shown. Noteworthy is the diagnosis of "history" of bilateral shin splints, with "minimal" residuals. No knee or ankle impairment associated with the right tibia or shin splints was found. Even rating the shin splints on muscle disability, which would be a stretch on this record, would not provide a basis for a compensable evaluation as there are no objective findings demonstrated that remotely approach moderate disability. While the veteran has complained of problems with his shin splints and right leg, as noted above, he has not provided any evidence of treatment for those problems, nor has he provided any objective evidence that a right tibia or bilateral shin splint problem is productive of any functional impairment, such as lost time from work or curtailment of activity. And in fact he has not argued this. The examiner in 1997 essentially found no functional loss by way of the diagnosis of "history" of shin splints, and minimal residuals now. The only residual noted on examination was the minimal tenderness of the medial tibial shafts. The Board can find no basis for a compensable evaluation for residuals of a stress fracture of the right tibia, with shin splints, or chronic shin splints, left leg. Given the above fundamental facts, the benefit of the doubt doctrine is not for application because the overwhelming weight of the evidence is against the claim. Left Forefoot The service-connected residuals of a stress fracture of the left mid-forefoot are rated on the basis of foot injury, and moderate foot injury warrants a 10 percent evaluation. A zero percent evaluation is assigned when the requirements for a compensable evaluation are not met. There is no record of any left foot problems for the veteran from 1989 to 1992. Additionally the veteran has not provided any objective evidence of any left foot impairment after service. The VA examination in August 1997 did not reveal any objective left foot disability, including x-ray study of the left foot, and the veteran himself is not qualified to ascertain the degree of disability. The Board can find no basis for a compensable evaluation for residuals of a stress fracture of the left mid-forefoot. Given the above fundamental facts, the benefit of the doubt doctrine is not for application because the overwhelming weight of the evidence is against the claim. Hearing Loss, Left Ear The amended portion of the Schedule for Rating Disabilities pertaining to the ear, effective in June 1999, does not affect the evaluation of the veteran's defective hearing in the left ear. Evaluations of unilateral defective hearing range from noncompensable to 10 per cent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability for defective hearing, the revised rating schedule establishes 11 auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. In situations where service connection has been granted only for defective hearing involving one ear, and veteran does not have total deafness in both ears, the hearing acuity of the non-service connected ear is assigned a Roman Numeral designation of I. 38 C.F.R. § 3.383, 4.85, Table VI, Diagnostic Codes 6100 to 6101 (1999). Whatever the veteran's hearing complaints, rating service- connected defective hearing is essentially mechanical, matching the percent of discrimination and average pure tone decibel loss found on official examination, to Table VI in the rating code. Here, the audiology findings in service are compatible with the August 1997 examination, and for the left ear, the 1997 findings of 96 percent discrimination and 38 decibel average loss compute to a literal designation of Roman Numeral I. The non-service connected right ear is also assigned a designation of Roman Numeral I, and level I hearing in both ears warrants a noncompensable rating. An increased rating for left ear hearing loss is not in order. Given the above fundamental facts, the benefit of the doubt doctrine is not for application because the overwhelming weight of the evidence is against the claim. ORDER A compensable evaluation for residuals of a stress fracture of the right tibia, with shin splints is denied A compensable evaluation for residuals of a stress fracture of the left mid-forefoot is denied. A compensable evaluation for chronic shin splints, left leg is denied. A compensable evaluation for defective hearing, left ear, is denied. REMAND The Court has held that when a diagnostic code provides for compensation based solely upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40, and 4.45 (1996) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The veteran injured his left thumb and the long finger of the right hand in service, and he was service connected for these disabilities in 1992. In the May 1997 remand, it was requested that on examination of the thumb and right middle finger, rated on the basis of limitation of motion, that the examiner should comment on the functional limitations, if any, in light of the provisions of 38 C.F.R. §§ 4.40, 4.55. The examiner in August 1997 failed to do so. This failure to fully comply with the Board's instructions is unacceptable, as the Court recently held in Stegall v. West, 11 268 (1998) that: ...a remand by this Court or by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. We hold further that a remand by this court or the Board imposes upon the Secretary of [VA] a con concomitant duty to ensure compliance with the terms of the remand....Finally, we hold also that where, as here, the remand orders of the Board or this court are not complied with, the Board itself errs in failing to ensure compliance....The Court takes this opportunity to remind the Secretary that he holdings of this decision are precedent to be followed in all cases presently in remand status. Accordingly, the case is remanded to the RO for the following actions: 1. The veteran should be permitted to submit or identify any other evidence in support of his claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. Following the above, the RO should contact VA physician, P. Stull, and request that he review the August 26, 1997, examination, and any additional evidence added to the record, and determine whether he can at this point in time provide an opinion, complete with rationale, as to the degree of functional impairment for the left thumb and right middle finger due to pain. If Dr. Stull is not available, or unable to provide such an opinion based on the record, another examination of the veteran's left thumb and right middle finger should be performed by an appropriate specialist. All necessary special studies and tests are to be accomplished. The examiner should record pertinent medical complaints, symptoms, and clinical findings including specifically active and passive range of motion, and comment on the functional limitations, if any, caused by the service connected disabilities in light of the provisions of 38 C.F.R. §§ 4.40, 4.55. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim as the information requested on this examination addresses questions of causation and symptomatology that are vital in these claims. 38 C.F.R. § 3.655 (1999). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. Richard B. Frank Member, Board of Veterans' Appeals