EW v. Shinseki 12-2155

 

 

 

BRIEFING CONFERENCE MEMORANDUM

 

TO:                 Elizabeth M. Hessman-Talbot, Esq., Central Legal Staff, U.S. Court of

                        Appeals for Veterans Claims

 

                        Shanti L. Hageman, Esq., Office of the General Counsel, Department of

                        Veterans Affairs

 

FROM:           David Anaise, MD, JD

 

DATE:           October ____, 2012

 

SUBJECT:    EW v. Eric K. Shinseki, Secretary of Veterans Affairs,

                        Vet. App. No.12-2155

 

 

            This memorandum is submitted pursuant to the Court’s Order of October 5, 2012, which scheduled a telephonic briefing conference to be held on Thursday, November 1, 2012, at 1:30PM (ET). This memorandum addresses the primary issues in the above-captioned appeal for the purposes of refinement of the issues and seeking a possible resolution of this matter. This memorandum does not raise all of the issues which may be briefed in this appeal. It assumes that VA counsel has also reviewed the Record Before the Agency and the law; thus, the issues presented below are set forth solely in an effort to find a common ground for a Joint Remand or other settlement or disposition. There may be issues not expressly stated but implicated by the record and the law. It is the position of Appellant that Rule 33(b) prohibits the dissemination of this memorandum (which includes revealing to the Court the contents of all or part of this memorandum) without express written consent of the Appellant.

            The claim addressed in the June 8, 2002, Board of Veterans’ Appeals (“Board” or “BVA”) decision on appeal (and addressed in this memorandum) is entitlement to benefits for severe and complex ankle fracture with osteomyelitis. Attached to this memorandum are the following:

  • BVA decision: Citation Nr: 1102673 – Decision Date: 01/21/11 Archive Date: 01/26/11 – Docket No. 02-04 941 – on appeal from the VARO in Detroit Michigan (24pp)

     

     

    Relevant Factual Background

     

                Mr. EW served on active duty from May 1974 to May 1976, and from October 1981 to March 1984. He also served in the National Guard with a period of active duty for training from August 1989 to August 1990. This matter came before the Board on appeal from a July 2006 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which granted service connection for right ankle disability and awarded an initial disability rating of 10 percent, effective September 26, 2005.

                In a March 2008 Board decision, the right ankle claim was remanded for further evidentiary development. By a July 2008 rating decision, the disability rating assigned to the service-connected right ankle disability was increased to 20 percent from April 28, 2008. Mr. EW expressed dissatisfaction with the increased rating. This case thus remains in appellate status.

                The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in November 2008, and the matter was returned to the Board.

                In April 2009, the Board again remanded Mr. EW’s right ankle claim for further development. In a rating decision dated December 20, 2011, the Review Officer increased the service-connected right ankle disability to 100% as of October 2, 2011, based upon surgery for a right below-the-knee amputation.

                During the course of the claim, Mr. EW continued to describe an inability to retain employment due to his service-connected right ankle disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (“Court”) held that a claim for the rating of total disability based on individual unemployability (TDIU) is part of an increased rating claim when raised by the record. Thus, the question of TDIU was addressed by the Board as part of the claim for a higher rating. Rice, supra; see also VA OGC PREC 06-96, 61 Fed. Reg. 66749 (1996).

                In its decision, the Board held that prior to October 2011, Mr. EW’s service-connected right ankle disability was manifested by symptoms consistent with disability tantamount to malunion of the tibia and fibula with marked ankle disability. From September 26, 2005, to October 2, 2011, Mr. EW’s service-connected right ankle disability did not preclude substantially gainful employment. From September 26, 2005, to October 2, 2011, the criteria for the assignment of a 30 percent disability rating, but no higher, for service-connected right ankle disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.15, 4.16, 4.71a (Diagnostic Code 5262) (2011).

     

    ARGUMENTS

                The BVA relied on a Compensation and Pension Examination performed on April 28, 2008. The examiner was asked to determine whether or not there was non-union or malunion of the right ankle fracture. He was also asked to determine if loose motion required a brace. The summary obtained by the rating physician is greatly deficient, because he did not have access to the entire medical record. Specifically his report failed to mention the extensive treatment Mr. EW had received for osteomyelitis of the ankle by a private physician, Dr. Rizzi.

                It is in fact surprising that the claim file now contains all of Dr. Rizzi’s records, yet the BVA does not even mention osteomyelitis before 2011 in its decision. The records show (allowing duplications) that osteomyelitis is well-referenced. See TR 31, 68, 179, 182, 211, 184,1 88, 304, 309, 310, 312, 348, 351, 354, 413, 416, 417, 418, 421, 423, 424, 425, 436, 439, 442, 461, 466, 485, 608, 614, 615, 1342 1347, 1355, 1359, 1361, 1367, 1377.

                In 2011, the osteomyelitis flared up necessitating a below-the-knee amputation of the right leg. It is abundantly clear that the osteomyelitis, which had started in 2005, flared up in 2011, leading to amputation. It is highly likely that the lucency seen on the X-ray in 2008 represented sequester of infected bone.

                The BVA failed to discuss osteomyelitis as a basis for Mr. EW’s disability. A rating for osteomyelitis is not only needed for correct rating of Mr. EW’s disability; it is also essential to determine whether Mr. EW is entitled to unemployability benefits. If the rating on Mr. EW’s right ankle is 40% or higher, then combined with Mr. EW’s other established service-connected disabilities, Mr. EW will qualify for a schedular rather than an extra-schedular TDIU award. We have attached another BVA decision for your review and reprint an excerpt from same below. (See Citation Nr: 1102673 Decision Date: 01/21/11 Archive Date: 01/26/11 - DOCKET NO. 02-04 941).

    “Veteran had untreated active osteomyelitis of the left ankle and treatment for this condition could include long term, high potency oral or intravenous antibiotic therapy, confinement with bed rest, hospitalization, and surgical interventions. Joint destruction within the left ankle could continue to worsen if the condition remained untreated. Mr. EW's general state of health could decline if the condition remained untreated and the treating physician might preclude continuous daily weight bearing, such as required by a working individual.”

     

    Relevant Medical History

                Dr. Grayson, a podiatrist, saw Mr. EW on April 5, 2005. Mr. EW presented with pain in the right foot and was wearing an air splint for an ankle sprain. On May 31, 2005, Dr. Grayson saw him again, and noted that the right ankle was swollen. Apparently Mr. EW had been to the ER on January 31, 2005, and was told that he had a little fracture of his ankle. He was suffering from chronic pain and swollen right ankle. The x-rays showed spiral fracture of the right fibula that was in a healing state, but had not immobilized. Dr. Grayson prescribed a knee-high walker with eight weeks of minimal weight-bearing and applied for Unna Boots and fracture shoe until he obtained this device.

                On June 13, 2005, Dr. Grayson referred Mr. EW to Dr. Raymond Rizzi, a doctor of podiatry in Missouri. Dr. Rizzi reported that Mr. EW came to the clinic with a previously fractured ankle of January 2005. Mr. EW came with a painful right ankle wearing a Cam Walker. At the time Mr. EW was a student at the vocational school. On examination, Dr. Rizzi noted that Mr. EW had a slightly edematous ankle with pain on palpation and pain on dorsiflexion and external rotation. The x-ray showed spiral fracture of the tibia and a displaced proximal shortened approximately to 2-3mm as seen in the lateral view.

                On June 27, 2005, Mr. EW underwent a CT scan of the right ankle finding an oblique fracture of the right distal fibula without significant displacement. Only mild healing was evidenced. This was also suggestive of at least partial nonunion as the MRI questionnaire relates at least partial reunion as the fracture occurred in January 2005. They also noted an intra articular fracture of the distal tibia laterally, again with 4.6mm of diastasis at the articular surface. The fibula had a diastasis of 5.6mm, and there was no callus formation evident to show a partial nonunion. There was sclerosis and subchondral cyst formation in the tibial plateau, and the talar dome represented degenerative changes.

                On June 30, 2005, Dr. Rizzi scheduled Mr. EW for surgery to take place on July 5 and in which Mr. EW would undergo right ankle reconstruction with repair of the distal fibula fracture, repair of the peroneus brevis tendon, as well as observing the ankle joint intraoperatively. The possibility of doing a calcaneal slide was also discussed. In the history and physical dictated on July 5, 2005, Dr. Rizzi noted that Mr. EW broke his ankle in January 2005. It was conservatively treated, but over time he noted increased pain, to the point that he was unable to work. There was also some destruction of the talar dome. The oblique view also showed an increase in the medial clear spaces. There was also a decrease in the ankle space symmetrically. The assessment was sprung mortise with a nonunion of a fractured distal fibula. The surgeon noted that the fracture also resulted in flat foot, and there was also negative 5 degree of dorsiflexion with the knee extended. The plan was to get an MRI of the ankle to look at the talus better, and Mr. EW was instructed to be non-weight-bearing. The MRI noted an obliquely oriented fracture involving the distal right fibula. This MRI is dated June 20, 2005, and showed fragmentation of the lateral aspect of the distal tibia at the articulating surface compatible with fracture as well as abnormal marrow sign, which might represent posttraumatic osteochondral lesion or possibly avascular necrosis. There was also nonvisualization of the anterior tibial-fibular ligament which was highly suggestive of ligamentous tear in this location. There was a partial split tear to the peroneus brevis tendon, evidence of posttraumatic damage to the medial talar dome, and tenosynovitis of the posterior tibial and peroneal tendon.

                The x-ray revealed an increasing medial clear space and obvious proximal displacement of the distal fragment of the fibula and gaping of the fracture fragment approximately 5-6mm. There was also a fracture fragment noted on the medial aspect of the talus. MRI and CT scans were obtained. The CT scan revealed the oblique fracture of the distal fibula with displacement noted about 5-6mm, and an MRI suggested partial nonunion. There was also a sclerotic subchondral cyst in the tibial plateau and talar dome measuring about 7mm. Intra articular fracture was noted in the distal tibia laterally with a 4-5mm of diastasis at the articular union of the mortise. There was no callus formation noted indicating no healing. They also noted the damage to the tendons that was previously discussed in the MRI report. The plan was to take down the distal fibula fracture, realign it in proper alignment with bone grafting and end-plating and also observe the lateral dome of the talus and the lateral aspect of the distal tibia, to correct the bone, place a bone graft and allow good healing and then there was a need to repair the torn tendons that we have stated. Dr. Rizzi discussed with Mr. EW the possibility of an ankle fusion in the future or even an ankle implant, and he cautioned Mr. EW that wound healing was certainly a concern with the amount of surgery going on. Due to the chronic pain, chronic edema, infection was of course a concern, and delayed union and nonunion were other concerns discussed with Mr. EW.

                Surgery was performed on July 5, 2005. The diagnosis was malunion of an ankle fracture. Mr. EW was seen post-operatively in the office on July 11, 2005, placed in a posterior splint, and ordered to be non-weight-bearing. On the 18th, he received the Cam Walker with non-weight-bearing continues. On August 1, 2005, at four-and-a-half weeks post ankle reconstruction, Dr. Rizzi thought that Mr. EW was healing well.

                On August 8, 2005, Mr. EW was admitted because of right ankle infection with compromised hardware. He was observed to have redness and tenderness and an area of excoriation which led to right ankle abscess. The wound was incised and drained. He was kept in the hospital on intravenous antibiotics for about five days and was discharged home for further therapy.

                On August 10, 2005, Mr. EW was reoperated on for osteomyelitis. The procedure was incision and drainage (“I&D”). The plan was to treat the osteomyelitis with intravenous antibiotics with a plan in the future for ankle fusion. On August 22, Mr. EW underwent further local debridement with curette and lavage and was placed on wound vac. The physician on August 25, 2005, noted that Mr. EW would have difficulty returning to school, and that ankle fusion is a very good possibility.

                On September 12, 2005, Mr. EW presented with inflamed right ankle and was receiving antibiotics. The skin of the right ankle was inflamed. On September 13, 2005, the physician noted that Mr. EW suffered from staph infection of the right ankle, which was treated by IV and Ancef. On examination, Mr. EW’s ankle was swollen with warmth and erythema. There is a summary on September 15, 2005, noting that Mr. EW was seen by orthopedics three weeks after his injury, and had been walking on it, and that conservative managements were recommended.

                Mr. EW returned to care at the VA hospital. Review of the x-ray showed that Mr. EW had a distal fibular fracture with plate and screw in place without evidence of breakage of the screws. On the lateral view, there was a posterior displacement of the distal fragment. It was noted that the lateral wound had not healed and was covered with dried exudate. Mr. EW was placed on vancomycin and was kept in the hospital on IV antibiotic. Hospital personnel would consult with a foot and ankle specialist to promote optimal outcome.

                On September 8, 2005, four weeks after his I&D, Mr. EW was still having dressings changed. Ankle fusion in the future was again discussed. Mr. EW was maintained on antibiotics. On September 26, 2005, Dr. Rizzi recorded that he got a call from Mr. EW that he had been admitted to the Veterans’ Hospital with infection of his leg. He was seen again on September 27, 2005, by Dr. Rizzi. This time, it had been six-and-a-half weeks since his last right ankle I&D. On October 20, 2005, Mr. EW returned 10 weeks after his I&D, still having dressing changes and walking with a Cam Walker. It appeared that the wound was healing to about 3-4mm in diameter with no drainage. Dr. Rizzi concluded that Mr. EW probably would end up with an ankle fusion, because he would not be amenable for reconstructive surgery.

                On November 15, 2005, 14 weeks after the drainage, another abscess was found in the right ankle, and they performed another I&D in the office. On November 22, 2005, Mr. EW had another surgery to remove the hardware in the right ankle. The plan was removal of the plate and thorough debridement. The physician cautioned that Mr. EW may still have osteomyelitis and may be required to be on IV antibiotics with a further hospital stay.

                On December 27, 2005, Mr. EW was status post hardware removal and was receiving antibiotics.

                On August 11, 2006, the x-ray report indicated that Mr. EW had severe degeneration of the tibial-talar joint with essentially complete loss of joint space. He also had some mild lateral subluxation of the talus. The conclusion was that Mr. EW had posttraumatic arthropathy of the right ankle. He also had a nonunion of lateral malleolus which might be an infected nonunion. They discussed with Mr. EW the option for ankle arthritis and offered a surgery which Mr. EW declined. He wished to have continuous conservative management. They placed an order for prosthetics and concluded that Mr. EW might get along with the prosthetic for certain activities for a long time before considering ankle fusion.

                Mr. EW reported on August 7, 2006, that he had been out of work and living with his parents and brother.

                On July 21, 2006, the record shows that Mr. EW had swelling of the right ankle. Mr. EW stated that the pain was 7/10, especially on standing and walking. The x-ray of May 6 showed an old fracture of the distal fibula with pseudo arthrosis and severe degenerative changes at the tibiotalar articulation with sclerotic and cystic changes. On July 21, 2006, Mr. EW reported that he could not walk more than 20 feet without assistance. He suffered from dull pain, but when he tried to walk it was sharp. It was also noted that the area was warm to touch.

                On May 5, 2006, (on page 50), the physician noted that Mr. EW was wearing an ankle brace.

                The record of January 12, 2007, notes that Mr. EW was disabled. They noted that x-ray of the foot on July 21, 2006, showed old fracture deformity of a distal fibula, moderate-to-severe osteoarthritic changes of the tibial-talar articulation with sclerotic and cystic changes. There was an asymmetry of the ankle mortise with lateral subluxation of the talus. On January 12, 2007, the orthopedic surgeon suggested that they fuse the ankle.

                On February 7, 2007, Mr. EW was seen at the VA Orthotics Clinic. He was measured for hard support and ankle splint. The orthotic expert noted that Mr. EW had right ankle instability and degenerative joint disease and needed ankle support. On February 9, 2007, Mr. EW was seen for a steroid shot due to ankle pain. The clinic offered to increase his morphine which he did not want.

                The orthopedic outpatient note on Page 27 of the record printed on February 27, 2007, from the Kansas City VA, states that Mr. EW continued to have ankle pain since the hardware was removed. He was able to bear weight, but even walking a short distance was quite painful. Unfortunately Page 28 is missing.

                On March 27, 2007, Mr. EW was seen at the Orthopedic Clinic, with a previous visit on February 13, 2007. Mr. EW was noted to be wearing an ankle brace, which offered only some relief, and he was receiving intraarticular injection. On physical examination, he had bony osteophyte throughout, mostly at the lateral malleolus, but also at the talar dome and medial malleolus. He had decreased range of motion with dorsiflexion of only 5 degrees, very little supination or pronation, and external and internal rotation. He had a plantar flexion limited to 15 degrees. The assessment was right ankle degenerative joint disease status post evidence of poorly healed distal fibular fracture and asymmetry of the ankle mortise. He received a steroid lidocaine injection.

                On May 7, 2007, the record observed evidence of fully healed distal fibular fracture and asymmetry of the ankle mortise.

                On June 29, 2007, the record notes that Mr. EW had a right ankle brace.

                On July 11, 2007, Mr. EW was assessed at a Homeless Program for initial assessment, as he was asking for eligibility for Homeless Veteran Program. The employment inquiry noted that in the past 3 years he had worked irregular day work, part time, and that for the past 30 days he had not worked.

                On August 28, 2007, he was prescribed an Arizona Brace and was fitted for a custom orthotics. He was casted for the orthotics on August 30, 2007. The orthotics, however, caused blistering, and he came to discuss surgical options. They made the diagnosis of severe osteoarthritis of the right ankle secondary to trauma. They consulted with Dr. Wan to discuss surgery for fusion.

                On January 23, 2008, Mr. EW complained of right ankle pain off and on, on walking, and asked for pain management.

                On April 4, 2008, Dr. Frykberg wrote that he was planning to perform a right ankle fusion with internal fixation due to severe degeneration that was noted on the x-ray. The April 2, 2008, note shows that Mr. EW was suffering from osteoarthritis of the right ankle, that the infection was due to MRSA, and that Mr. EW was treated for four months with antibiotics. The surgeons planned surgery for fusion of the ankle on April 4, 2008. The surgery for the fusion was cancelled on April 7, 2008, due to a positive urine test for drugs.

                The right ankle x-ray dated April 28, 2008, revealed posttraumatic abnormality of the right ankle with old lateral malleolar fracture and markedly abnormal talar-tibial joint. Views of the right ankle revealed old fracture with marked distortion of the ankle mortise. The lateral malleolar fracture had abundant callus. Although there was angulation, the fracture site appeared to be relatively solid. Only on the lateral view was there a loosened area at the proximal aspect of a fracture, which might be due to partial malunion, although the other view certainly did not suggest this. The right ankle MRI taken in 2005 revealed a small comminuted fracture at the tibia plateau distally in the lateral aspect of the distal tibia. There appeared to be a chronic fractured distal fibula, tear of the anterior tib-fib ligament and talofibular ligament with increase in some mild edema in the medial talar dome, stage I osteochondral lesion, and synovitis posterior tibial tendon and peroneal. The right ankle x-ray dated May 2005 revealed spiral fracture of a tibia and displaced proximal shortened and approximately 2.3mm seen by lateral view. Lateral aspect of the talus showed some destruction of the talar dome.

                Dr. Rizzi’s records show that Mr. EW had a right ankle fusion in April 2010. The fusion initially went without complication; however, by June 2010, irritation and redness developed in the fusion area. The VA treatment records show that Mr. EW developed infection in the wound with abscess in the right lower extremity. This was found to be osteomyelitis and the infection required amputation on October 2, 2011.

                The case before you is very similar to a case recently decided by the BVA (enclosed: Citation Nr: 1102673 Decision Date: 01/21/11 Archive Date: 01/26/11 -- DOCKET NO. 02-04 941). In that case, the VA examiner diagnosed degenerative changes secondary to an old trauma in the left ankle and active osteomyelitis of the left distal tibia/fibula. His findings are remarkably similar to the findings in Mr. EW’s case. In the case cited (1102673), the BVA made the following rating analysis:

    “The Veteran's disability has been essentially rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5000, 5270, 5271, pursuant to which osteomyelitis and limitation of ankle motion is rated. … According to 38 C.F.R. § 4.71a, Diagnostic Code 5000, Note (1) (2010), a rating for osteomyelitis between 10 and 30 percent is to be combined with ratings for ankylosis and limitation of motion, subject to the amputation rule. Therefore, the ratings for the Veteran's osteomyelitis and residuals of a left ankle fracture with post-traumatic arthritis will be discussed separately below. … When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Chronic, or recurring, suppurative osteomyelitis, once clinically identified, including chronic inflammation of bone marrow, cortex, or periosteum, should be considered as a continuously disabling process, whether or not an actively discharging sinus or other obvious evidence of infection is manifest from time to time, and unless the focus is entirely removed by amputation will entitle to a permanent rating to be combined with other ratings for residual conditions, however, not exceeding amputation ratings at the site of election. 38 C.F.R. § 4.43 (2010).”

     

                We argue that the analysis of the Board in that case is compelling in our case as well, as it combines the 30% limitations for marked limitation of motion granted by the Board with 20% for active osteomyelitis (5000) subject to the amputation rule of BKA 40%, to which the Court needs to combine, starting on August 2005, 10% for right knee, 10% recurrent subluxation left knee, 10% osteoarthritis of the left knee with chondromalacia, 10% tinnitus, and add bilaterality of both knees. The left knee was rated 30% for knee replacement in 2011. A schedular TDIU evaluation is thus needed. Mr. EW has been unemployed since 2006.

     

    G:\clientsP\EW, Edward\VA claim\CAVC documents\EW Briefing Conference Memorandum - draft2 10-10-12.docx

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