Citation Nr: 0003317 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-19 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased evaluation for residuals of right ankle sprain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for hemorrhoids and hypertrophic anal papilla. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served on active duty from June 1948 to February 1950, from April 1951 to April 1953, and from December 1954 to January 1958, for a total active service period of 8 years and 1 day. His decorations include the Korean Service Medal with one bronze service star. This appeal arises before the Board of Veterans' Appeals (Board) from an August 1998 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA), in which an evaluation in excess of 10 percent disabling was denied for sprained ankle, right, with residual swelling and deformity of the talus, and an increased (compensable) evaluation was denied for hemorrhoids and hypertrophic anal papilla. FINDINGS OF FACT 1. Residuals of right ankle sprain currently manifested by normal range of motion in the right ankle, with subjective complaints of intermittent pain, crepitus, findings of tenderness on extremes of range of motion, and x-ray evidence of early osteoarthritis. 2. There is no evidence of current hemorrhoidal disease or anal papillae. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 10 percent disabling have not been met for residuals of right ankle sprain. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.40, 4.59, 4.71(a), Diagnostic Codes 5003, 5271 (1999). 2. The schedular criteria for an increased (compensable) evaluation have not been met for hemorrhoids and hypertrophic anal papilla. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7336 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claims for increased evaluations are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998) that is, the claims are plausible. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The record does not indicate the need to obtain any additional pertinent records, and is accordingly found that all relevant facts have been properly developed, and that the duty to assist the veteran has been satisfied. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule), 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). In making a determination in this case, the Board has carefully reviewed the pertinent medical evidence, including the veteran's entire medical history in accordance with 38 C.F.R. § 4.1 (1999) and Peyton v. Derwinski, 1 Vet.App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6 (1999). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to identify the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.2, 4.10 (1999). Residuals of right ankle sprain, to include deformity of the talus Initially, the Board notes that the veteran's accredited representative has argued that the recent VA orthopedic examination, conducted in January 1998, is inadequate as the examiner failed to provide the right ankle motion in range of degrees; the veteran's complaints of right ankle pain were not addressed; and no right ankle x-ray was available for review. Having reviewed the record, however, the Board is satisfied that the recent VA examination is sufficient for rating purposes. Specifically, the record does include the report of the right ankle x-rays conducted at the time of the examination, contrary to the representative's contentions. Furthermore, the examiner did describe the veteran's complaints of pain and findings of crepitus in the right ankle when discussing the current symptomatology. In addition, the Board finds that it would not be necessary in this instance to specify range of motion in actual degrees, as no limitation of motion was demonstrated and the examiner so stated. Finally, the examiner indicates in the examination report that he was aware of the necessity of describing any findings relative to functional loss due to pain in the right ankle. For these reasons, the Board finds that the recent VA examination conducted in January 1998 was adequate for rating purposes, and that a remand for a new examination at this time would only result in unnecessary delay in adjudication of the veteran's appeal. Evidence and Background Service medical records show treatment for a right ankle sprain in April 1949, an injury which occurred when the veteran was jumping from a pier to a boat. He was also treated for a right ankle sprain in November 1951, after slipping and falling on the steps of a building. In March 1956, treatment is shown for a right ankle sprain after the veteran injured the ankle while playing softball. The report of the veteran's January 1958 discharge examination shows a notation of weakened supports to right ankle with regard to the lower extremities. On VA examination in November 1965, the veteran reported that he had sprained his right ankle in 1951, and he had experienced continued swelling since the time of the original injury. He also reported that he had reinjured the ankle numerous times. Objective findings included swelling and tenderness in the region of the lateral malleolus. The report shows an impression of sprain, severe, recent, right ankle with limitation of motion and residual swelling. In December 1965, service connection was granted for sprain, right ankle, limitation of motion, and swelling, with assignment of a 10 percent evaluation under Diagnostic Code 5271. On VA examination in December 1970, findings included tenderness in the external malleolus with crepitus on movement. Diagnosis is shown as early osteoarthritis, very moderate, post-traumatic, no loss of joint motion. On right ankle x-ray in December 1970, findings included a small bony excrescence on the anterior surface of the astragalus and some calcific deposit at the lower anterior margin of the tibia, suggestive of old injury. On VA orthopedic examination in November 1971, an impression of history of severe sprain of right ankle, with residual traumatic arthritis and moderate disability, is shown. A May 1976 hospital report shows a diagnosis of osteoarthritis, right ankle, with objective findings of slight tenderness. On VA examination in August 1976, a diagnosis of chronic sprain of the right ankle was given. The report of an August 1976 right ankle x-ray shows findings of old evidence of injury to the right ankle, with deformity of the talus. A March 1994 VA outpatient treatment record shows that the veteran gave a history of right ankle pain since an injury 30 years before. A March 1995 hospital report shows that the veteran was hospitalized for treatment of various medical disorders, including insulin dependent diabetes mellitus and degenerative joint disease. Findings on admission physical included trace pitting edema over both ankles. Additional VA treatment records, dated in the 1990's, show that the veteran was followed by Podiatry for problems with his feet (including numbness, tingling, and onychomycosis), related to diabetic neuropathy. In January 1998, the veteran was afforded a VA joints examination. The veteran's clinical records were reviewed by the examiner, and the examiner also noted that he had been asked to include findings of any functional loss due to pain in the examination report. It was noted that the veteran complained of intermittent right ankle pain and right ankle stiffness since approximately 1956. Current symptomatology included pain and stiffness in the right ankle without known joint swelling, with intermittent crepitus in involved joints. The veteran denied other joint related symptoms. On physical examination, range of motion in all joints other than the right shoulder was normal with tenderness in the right ankle on extreme motion. The examiner stated that "no other abnormal findings were noted." Diagnoses included degenerative joint disease/osteoarthritis of the right ankle. The record includes the January 1998 report of a right ankle x-ray. Findings include very early, very minimal osteoarthritic change with some spur formation on the talus. The ankle mortis was well-preserved. An impression of very early, very minimal osteoarthritis is shown. Analysis Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity or other pathology, or it may be due to pain, supported by adequate pathology and evidence by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1998). See also DeLuca v. Brown, 8 Vet.App. 202 (1995). A diagnosis of traumatic arthritis has been shown with regard to the veteran's right ankle disability, and osteoarthritis has been confirmed by x-ray. Diagnostic Code 5010 pertains to traumatic arthritis, which is evaluated under the criteria for degenerative arthritis as found in Diagnostic Code 5003. Diagnostic Code 5003 indicates that the rating should be assigned based on the limitation of motion under the appropriate diagnostic code for the joint involved, or in this case under Diagnostic Code 5271 for limitation of ankle motion. The veteran is currently receiving 10 percent based on moderate limitation of ankle motion under Diagnostic Code 5271, and the next highest, or 20 percent evaluation requires evidence of marked limitation of ankle motion. Also, a rating in excess of 10 percent is available where there is objective evidence of ankylosis. See Diagnostic Code 5270 (1999). Having reviewed the record, the Board has concluded that the preponderance of the evidence weighs against a finding that an evaluation in excess of 10 percent disabling is warranted for the veteran's right ankle disability at this time. Specifically, the evidence does not demonstrate the presence of marked limitation of motion in the right ankle. The VA outpatient treatment records are negative for treatment or complaints specific to the right ankle, and on recent VA examination, the degree of range of motion in the right ankle was within normal limits. Although objective findings and current symptomatology include right ankle crepitus, tenderness on extremes of motion, and complaints of intermittent pain, the Board is of the opinion that this pathology is adequately compensated by the current 10 percent evaluation assigned under Diagnostic Code 5271, which corresponds to a moderate limitation of motion or moderate degree of ankle disability. In the absence of evidence showing that the veteran's right ankle is currently productive of marked limitation of motion in the right ankle or other evidence of a marked right ankle disability, the Board cannot conclude that the criteria have been met for a higher rating as contemplated by the Schedule. In making its decision, the Board has also considered the propriety of assigning a higher evaluation on the basis of additional disability and functional loss resulting from pain, as provided for in the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, supra. In the Board's view, the recent VA outpatient treatment records and the VA examination report do not indicate an additional degree of disability attributable to the veteran's service-connected right ankle disorder. The Board notes that the VA examiner did not make a finding of functional loss in the right ankle as a result of pain, although he stated in the examination report that he had been expressly asked to indicate any such findings, and the reports of recent treatment are not suggestive of any such functional impairment. Thus, the current objective findings with regard to the veteran's right ankle (tenderness on extreme motion, crepitus, and complaints of pain), have not been shown to be productive of additional disability or functional impairment in excess of 10 percent evaluation which is currently assigned. The Board also notes that in the absence of evidence demonstrating the presence of ankylosis in the right ankle, there is no basis for assignment of an increased evaluation for the veteran's right ankle disability under Diagnostic Code 5270. For the reasons stated above, therefore, the Board finds that the schedular criteria for an evaluation in excess of 10 percent disabling have not been met for the veteran's right ankle disability. Accordingly, the veteran's claim for an increased evaluation must be denied. In Floyd v. Brown, 9 Vet. App. 88, 96 (1996), the Court held that the Board does not have jurisdiction to assign extra- schedular evaluations under 38 C.F.R. § 3.321(b)(1), in the first instance. However, there has been no showing that service-connected disability has caused marked interference with employment or necessitated frequent periods of hospitalization. The Board notes that there is no indication that the disorder has cause the veteran to be hospitalized since his separation from service. In the absence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Hemorrhoids and hypertrophic anal papilla Service medical records show treatment for chronic hemorrhoids, and a notation of hemorrhoids is shown on the January 1958 discharge examination with regard to the anus and rectum. A January 1965 VA examination shows a diagnosis of hypertrophied anal papillae, symptomatic, unable to visualize or feel hemorrhoids. In December 1965, service connection was granted for hemorrhoids and hypertrophic anal papillae. The criteria for evaluation of external or internal hemorrhoids are set forth in the Schedule in Diagnostic Code 7336, which provides for a zero percent (noncompensable) evaluation for mild or moderate external or internal hemorrhoids. A 10 percent evaluation requires large or thrombotic irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences, and a 20 percent evaluation requires evidence of persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. Part 4, Code 7336 (1999). Having reviewed the record, the Board has concluded that the preponderance of the available evidence weighs against a finding that a compensable evaluation is warranted for the veteran's service-connected hemorrhoids and hypertrophic anal papillae. A 1997 outpatient record shows that the veteran complained of blood in his urine the previous Saturday morning, and a diagnosis of hematuria is shown. However, there is no evidence in the recent outpatient or hospital records of treatment or complaints for symptomatology attributable to a hemorrhoidal disorder. On VA examination in January 1998, the veteran gave a history of intermittent protruding hemorrhoids with occasional mild bright red rectal bleeding since the time of his military service. He reported frequent anal discomfort and perianal pruritus but denied any other anorectal and/or colonic symptomatology except for intermittent constipation. On examination, there was no evidence of visible external hemorrhoidal tags, and the examiner provided a diagnosis of intermittent protruding hemorrhoids without current clinical evidence of any hemorrhoidal disease. Thus, the evidence does not suggest that the veteran's complaints of intermittent hemorrhoids and anal discomfort are currently manifested to the degree of severity which is contemplated for a compensable evaluation under the schedular criteria. Specifically, there was no evidence of hemorrhoidal disease on VA examination of the anus and rectum and outpatient treatment records are negative for treatment specific to hemorrhoids and anal papillae. As a result, the evidence does not suggest the presence of large, irreducible, or thrombotic hemorrhoids or similar symptomatology associated with anal papillae which could serve as the basis for the assignment of a compensable evaluation for this disability. For the reasons stated above, the Board has concluded that the evidence does not demonstrate the current manifestation of symptomatology which is sufficient to support the assignment of an increased evaluation for hemorrhoids under the appropriate diagnostic criteria. As the preponderance of the evidence is unfavorable, the veteran's claim for an increased evaluation must be denied. In Floyd v. Brown, 9 Vet. App. 88, 96 (1996), the Court held that the Board does not have jurisdiction to assign extra- schedular evaluations under 38 C.F.R. § 3.321(b)(1), in the first instance. However, there has been no showing that service-connected disability has caused marked interference with employment or necessitated frequent periods of hospitalization. The Board notes that there is no indication that the disorder has cause the veteran to be hospitalized since his separation from service. In the absence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent disabling is denied for residuals of a right ankle sprain. An increased (compensable) evaluation is denied for hemorrhoids and hypertrophic anal papilla. C. P. RUSSELL Member, Board of Veterans' Appeals