Citation Nr: 1314017 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-22 765 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a higher initial evaluation for residuals of a left tibia fracture, evaluated as 10 percent disabling from December 14, 2007. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The appellant served as a member of the Army National Guard and had a period of active duty for training from July 2004 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case was subsequently transferred to the Chicago, Illinois RO. In June 2011, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The Board remanded the case in August 2011 and September 2012 for additional development. The Board finds that the Appeals Management Center (AMC) has substantially complied with the remand orders, and that neither the appellant nor her representative has contended otherwise; therefore, it may proceed with its review of this appeal. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). FINDING OF FACT Residuals of a left tibia fracture include pain, limitation of flexion of the left knee to 135 degrees, and limitation of plantar flexion of the left ankle to 40 degrees; there is no recurrent subluxation or lateral instability, no ankylosis, no osteomyelitis, and no functional loss manifested by pain. CONCLUSION OF LAW The criteria for an initial evaluation higher than 10 percent for residuals of left tibia fracture have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where, as here with the claim for an initial compensable rating for the service-connected left tibia fracture, service connection has been granted, that claim is substantiated. No additional VCAA notice is required with respect to the downstream issue of the rating assigned. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the Board finds that VA has complied with its duty to assist the appellant in the development of her claim. VA has obtained service treatment records (STRs) and VA treatment records. She has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c) (2). Additionally, VA examination with respect to the issue on appeal was obtained in February 2012, with an addendum obtained in March 2012. To that end, 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 VA examination and addendum opinion obtained in this case are sufficient, as they considered all of the pertinent evidence of record, including the statements of the appellant , and provided the medical information necessary to apply the appropriate rating criteria. The Board finds that VA's duty to assist the appellant with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. See 38 C.F.R. § 3.159(c)(4). II. Higher Rating 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. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the claimant, as well as the entire history of the claimant's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion studies. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. The appellant's left tibia disability has been rated under 38 C.F.R. § 4.71a, DC 5262 for impairment of the tibia. DC 5262 provides the diagnostic criteria for tibia and fibula impairment. A maximum 40 percent rating is assigned for nonunion of, with loose motion, requiring brace; malunion of, with marked knee or ankle disability warrants a 30 percent evaluation; malunion of, with moderate knee or ankle disability warrants a 20 percent evaluation; and, malunion of, with slight knee or ankle disability warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, DC 5262. The terms "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just," and all evidence must be evaluated in deciding rating claims. 38 C.F.R. § 4.6 (2012). The VA General Counsel has held that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, DC 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. Normal range of motion of the ankle is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. STRs reflect that during service in 2004 the appellant sustained a left tibia fracture. Casting and physical therapy were required. The appellant submitted to an April 2008 VA joints examination. She stated that her left leg continued to "bother" her three or four times a week at the site of the previous fracture. She rated the pain 8/10. The pain occurred after prolonged standing, on stairs, or with changes in the weather. She indicated occasional mild swelling at the site of the previous fracture anteriorly, but denied any redness or limp. She denied the use of any assistive devices. The appellant had not received any medical care for this disability since discharge. Neither her activities of daily living nor her occupation had been affected. Upon physical examination, there was a very mild prominence over the anterior tibia at the junction of the upper and middle thirds. There was no tenderness. The left calf measured 15-1/2 inches and the right calf measured 15-1/8 inches. Gait was normal. There was no knee or ankle symptomatology. X-rays revealed a well-healed remodeled fracture. The examiner stated that it would be speculative to estimate any increase in pain or additional loss of range of motion during a flare. The Board notes, however, that the examination report contains no range-of-motion findings. In a May 2009 VA Form 9, the appellant stated that she has pain "several days out of every week." During her June 2011 hearing, the appellant testified that she experiences moderate left tibial pain and a slight red discoloration whenever she walks more than "a couple of blocks" or two flights of stairs. The pain is sharp and travels slightly up into her left knee, but not to her foot. The pain does not limit her knee and does not affect her ankle. The appellant testified that she took 600 milligrams of ibuprofen as needed for pain. A September 2011 VA treatment record shows that the appellant complained of worsening knee pain, which she felt was connected to her service-connected tibia disability. In October 2011, the appellant was referred to physical therapy because of left knee pain of one year's duration, but that she complained about right knee pain of one month's duration. (Emphasis added). She reported "balance issues related to leg weakness." Upon physical examination of the left leg, mild genu valgus was noted. Range of motion of the knee was within normal limits. Anterior drawer, Lachman, and McMurray testing were negative. There was no joint line tenderness. A patellar grind test was negative. Straight leg raising was negative. Strength testing of the ankle was normal, but poor motor control was noted. X-rays were within normal limits. The therapist diagnosed patellofemoral pain syndrome of the right knee. A November 2011 physical therapy note contains a diagnosis of left knee pain. The appellant submitted to a February 2012 VA examination of the left knee and ankle. With respect to the ankle, she denied any flare-ups that impacted function. There was no pain on palpation of the left ankle. She denied the use of any assistive device. Upon physical examination, strength and joint stability testing were normal. There was no ankylosis, shin splints, stress fracture, Achilles tendonitis, Achilles tendon rupture, malunion of the calcaneus or talus, or talectomy. The examiner specifically noted that there was no ankle involvement. Left ankle plantar flexion was to 40 degrees, with no objective evidence of painful motion. Left ankle plantar dorsiflexion ended at 20 degrees or greater. There was no additional limitation in range of motion or any functional loss after repetitive testing. The examiner determined that the appellant's ankle condition does not impact her ability to work. With respect to the knee, she denied any flare-ups that impacted function. There was no pain on palpation. She denied the use of any assistive device. Upon physical examination, strength and joint stability testing were normal. There was no patellar subluxation or dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The examiner specifically noted that there was no knee involvement. Flexion was to 135 degrees, with no objective evidence of painful motion. Extension was to 0 degrees, with no objective evidence of painful motion. There was no additional limitation in range of motion or any functional loss after repetitive testing. The examiner determined that the appellant's ankle condition does not impact her ability to work. In a March 2012 addendum, the VA examiner noted that he had reviewed the claims file. In a February 2012 correspondence, the appellant stated that VA physical therapy had issued her two knee braces that were to be worn every day "to lessen the effect of the excessive elasticity of my knees." The Board finds that the evidence does not support a higher evaluation under the criteria set out in DC 5262. The evidence shows no significant disability in the left knee or ankle as a residual of the in-service fracture, at any time. Moreover, there has been no showing of malunion. Nevertheless, the residuals of the left tibia fracture are no more than slight, even if malunion was shown. The schedular criteria for a higher rating in accordance with DC 5262 are not met. The Board has considered rating the residuals of the appellant's left tibia under other diagnostic codes in order to provide her with the most beneficial rating. Limitation of flexion of the left knee is noncompensable per objective findings. As detailed, flexion and extension were normal on objective examination in February 2012. On repetitive motion, there was no change. The Board acknowledges the appellant's reported imbalance/knee elasticity. Although a VA physical therapist prescribed a knee brace in October 2011, it is unclear for which knee it was intended. In any event, there have been no findings of instability or subluxation of the left knee. Thus, DCs 5257, 5260, and 5261 are not appropriate. In addition, DCs 5256, 5258, and 5263 are not appropriate because there is no evidence of ankylosis of the knee, dislocation, or genu recurvatum. DC 5259 does not provide for a higher disability rating. Finally, there is no showing of loss of motion of the ankle joint such that ankle disability could be considered even moderate in degree, precluding a compensable rating assignment under DCs 5270 or 5271. The Board acknowledges the appellant's statements regarding the severity of her left tibia fracture residuals. Specifically, she contends that her left knee is far more disabled than her currently assigned rating indicates. The Board further notes that the appellant is competent to attest to the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, the Board places significantly more weight on the objective clinical findings reported on examination than the appellant's statements as she is not shown to have the requisite training to determine the severity of her service-connected disability. Consideration has also been given regarding whether the schedular criteria are inadequate, requiring that VA refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation. This may be done where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a claimant's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular evaluation in this case is adequate. Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity of the appellant's disability. The Board acknowledges the appellant's reported pain and imbalance/knee elasticity. As seen in the analysis above, the Board has considered these aspects of the appellant's disability, and finds that the rating schedule adequately provides for ratings based on these symptoms or impairments. The appellant has not required hospitalization due to this service-connected disability. There has been no allegation or evidence of unemployability. Therefore, the appellant's disability picture is contemplated by the rating schedule and no extraschedular referral is required. ORDER An initial rating in excess of 10 percent for residuals of a left tibia fracture is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs