Citation Nr: 1301716 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-06 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for residuals of a fracture of the left fibula (left fibula disability), currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1959 to December 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO), which granted service connection for low back disability, assigning an initial 10 percent rating effective March 28, 2007, and granted an increased rating of 10 percent for service-connected left fibula disability, effective March 28, 2007. A January 2009 decision review officer's (DRO) decision granted service connection for reduced strength in the left lower extremity and assigned a 10 percent rating effective March 28, 2007. A June 2009 rating decision granted TDIU and Dependents' Educational Assistance, both of which were effective on July 29, 2008. A March 2012 DRO decision granted a 20 percent rating for service-connected low back disability effective December 29, 2010, and the Veteran indicated in an April 2012 VA Form 21-4138, Statement in Support of Claim, that he was only continuing to appeal the issue listed on the title page. Although the Veteran requested a Board hearing in his February 2009 substantive appeal, he indicated in correspondence received by VA in October 2012 that he wished to withdraw his request for a Board hearing. See 38 C.F.R. § 20.702(e) (2012). The issue of whether there is clear and unmistakable error in the assignment of an effective date of July 29, 2008 for the Veteran's total disability rating based on individual unemployability due to service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT At no time during the appeal period has the Veteran's left fibula disability been characterized by extension limited to more than 10 degrees or flexion limited to less than 45 degrees, nor has impairment of the tibia and fibula with moderate knee or ankle disability been shown for the left leg. CONCLUSION OF LAW The criteria for an increased rating for left fibula disability, currently rated as 10 percent disabling, have not been met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5262 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). A VA letter sent to the Veteran in August 2007, prior to adjudication, informed him of the requirements needed for an increased rating. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Veteran was also informed in the August 2007 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. An evaluation of the Veteran's left fibula disability was recently obtained in March 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA evaluation obtained in this case is adequate, as it includes a discussion of the Veteran's relevant left leg symptomatology. There is adequate medical evidence of record to make a determination on the increased rating issues in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination relevant to the increased rating issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue addressed on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran was granted service connection for a left fibula disability by rating decision in January 1979 and assigned a noncompensable evaluation effective September 13, 1978. A claim for an increased rating for a left fibula disability was received by VA on March 28, 2007. A January 2008 rating decision assigned a 10 percent rating, effective March 28, 2007, for the left fibula disability. The Veteran continued his appeal because he contended that this disability was more than 10 percent disabling. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45. The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 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 or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Veteran's service connected left fibula disability is rated under the provisions of Diagnostic Code 5262, for malunion of the tibia and fibula. Under this Code, a 10 percent evaluation is warranted for impairment of the tibia and fibula with slight knee or ankle disability. A 20 percent evaluation is warranted for impairment of the tibia and fibula with moderate knee or ankle disability. A 30 percent evaluation is warranted for impairment of the tibia and fibula with marked knee or ankle disability. A 40 percent evaluation is warranted for nonunion with loose motion requiring a brace. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2012). It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran's claim for an increased rating was received by VA in March 2007. The relevant period for consideration in this appeal begins one year prior to that submission (i.e., in March 2006). However, the medical evidence from March 2006 to November 2007 does not involve treatment or evaluation of the left fibula disability. The Veteran complained on QTC evaluation for VA purposes in November 2007 of lower back and left leg pain. He said that his low back and lower leg disabilities limited his ability to run, participate in sports, walk for long distances, and move without support from a cane, chair, or wall. He did not come to the examination with any assistive device but said that he often used a cane to ambulate. Physical examination revealed a normal gait. Leg length from the anterior superior iliac spine to the medial malleolus was 95 cm on the right and 97.5 cm on the left. Examination of the tibia and fibula was reported to be normal bilaterally. Range of motion of the left knee was from 0 to 140 degrees; motion of the left ankle included 20 degrees of dorsiflexion and 45 degrees of plantar flexion. There was no left knee or ankle edema, effusion, weakness, redness, heat, guarding of movement, or subluxation. There was no additional functional impairment of the left knee or ankle after repetitive use. No knee instability was found. There was no malunion of the left os calcis or astragalus. X-rays of the left tibia and fibula were considered to be within normal limits. In answer to the question of the residuals of the fractured fibula, the examiner noted that there was leg length discrepancy progressing to low back pain progressing to lumbosacral intervertebral disc syndrome manifested as low back pain with radiation down the left lower extremity. He required a cane with ambulation because it gave support to his back and stabilization of his gait. On QTC knee and lower leg evaluation for compensation purposes in March 2012, range of motion of the left knee was from 0 to 140 degrees without objective evidence of painful motion. Motion of the left ankle was not provided. There was no functional impairment of the left knee or lower leg, including on repetitive motion. There were no knee or lower leg flare-ups and no knee instability or subluxation/dislocation. It was concluded that the left knee and lower leg disability did not impact the Veteran's ability to work. There were no appreciable abnormal findings on X-rays of the tibia and fibula. The objective evidence outlined above does not support the Veteran's claim for a rating in excess of 10 percent for his left fibula disability. The medical evidence does not show findings of impairment of the tibia and fibula with any more than slight knee or ankle disability. The examination reports do not show limitation of flexion of the leg to 30 degrees (so as to warrant a 20 percent rating under Code 5260) or limitation of extension by 15 degrees (so as to warrant a 20 percent rating under Code 5261), even with factors of pain and use (repetitive motion) considered. In fact, range of motion of the left ankle was to 25 degrees of dorsiflexion and to 45 degrees of plantar flexion in November 2007; motion of the left knee was from 0 to 140 in November 2007 and March 2012. Consequently, a rating in excess of 10 percent for the left fibula disability under either Code 5260 or 5261 (or based on a combination of ratings under these two codes) is not warranted. Additionally, a separate rating under a non-range of motion Diagnostic Code, such as 5257 involving instability, is not warranted. Diagnostic Code 5262 takes into account instability, which is not shown in any of the medical evidence. Under Code 5262, a 20 percent rating would be warranted if there were malunion of the tibia or fibula with moderate ankle disability; the medical evidence shows no significant disability in the left ankle or knee as a residual of the in-service fracture. Although a leg length discrepancy was noted in November 2007, the left tibia and fibula were noted to be normal on examinations in November 2007 and March 2012. The Board finds that any disability in the left knee or ankle is no more than slight, and the criteria for a higher rating in accordance with Diagnostic Code 5262 are not met. Consideration of other diagnostic codes for rating knee or ankle disability (5256, 5258, 5259, 5263, 5270, 5272, 5273, 5274) is inappropriate in this case as the Veteran's leg disabilities do not include the pathology required in the criteria for those Codes (ankylosis, dislocated or post-removal semilunar cartilage, genu recurvatum, malunion of os calcis or astragalus, or astragalectomy). 38 C.F.R. § 4.71a. The Board would note that the Veteran is receiving separate compensable ratings for his low back and related left leg disorders. The evaluation of a musculoskeletal disability requires consideration of all of the functional limitations imposed by the disorder, including pain, weakness, limitation of motion, and lack of strength, speed, coordination or endurance. See Spurgeon v. Brown, 10 Vet. App. 194 (1997); 38 C.F.R. § 4.40. In order to warrant a higher evaluation, the left fibula disability would have to approximate the functional equivalent of limitation of flexion to 30 degrees (Diagnostic Code 5260) or the functional equivalent of limitation of extension to 15 degrees (Diagnostic Code 5261). The Board finds that neither the objective nor the subjective evidence reflects such functional impairment. In fact, examinations in November 2007 and March 2012 show left knee motion from 0 to 140 degrees. Additionally, there was no limitation of function of the left lower extremity on repetitive testing. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Consequently, the schedular criteria for the next higher rating of 20 percent for left fibula disability have not been met at any time during the appeal period, and such rating is not warranted for the disability at issue. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is competent to report his left fibula symptoms, such as pain. His complaints are competent to the extent that they reflect pain. The Veteran's complaints have been considered; however, the assigned percentage ratings are primarily based on the objective criteria discussed above. The Board has also considered whether this issue should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Here, the symptoms of and impairment resulting from the Veteran's service-connected left fibula disability are within the criteria for the 10 percent schedular rating assigned. As noted above, range of motion of the left knee was from 0 to 140, and the left fibula was noted to be normal. The record does not reflect (or suggest) any symptoms/impairment of the disability not encompassed by the schedular criteria. Therefore, the criteria are not inadequate, and referral for extraschedular consideration is not warranted for this increased rating issue. Finally, the Board notes that the Veteran has been receiving TDIU benefits since July 29, 2008. The Veteran was granted TDIU by a June 2009 rating decision that was not appealed and the final decision will not be addressed by the Board in this decision. Consequently, the matter of entitlement to TDIU is no longer relevant to the IR decided above. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As noted in the Introduction, the Veteran has filed a motion for CUE seeking an earlier effective date for TDIU. That issue has been referred to the RO for adjudication in the first instance. ORDER Entitlement to an increased rating for left fibula disability, currently rated as 10 percent disabling, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs