Citation Nr: 1320252	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  10-00 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for residuals of a fractured left tibia.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D. Bredehorst



INTRODUCTION

The Veteran had active duty service from April 1964 to April 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Indianapolis RO that granted service connection for residuals of a fractured left tibia and assigned a 20 percent rating effective September 28, 2007, which is the date the claim for service connection was received.  The Veteran appealed the initial rating assigned for the disability.

The Board has reviewed the contents of the Veteran's Virtual VA file and found no medical or other evidence pertinent to this appeal that is not in the claims file. 


FINDINGS OF FACT

1.  For the period beginning the date of receipt of claim of September 28, 2007 to May 14, 2010, the service-connected left leg disability was manifested by flare-ups 2 to 3 times a week, knee extension limited to 10 degrees, knee flexion limited to 90 degrees, painful motion, crepitus, and a disability picture that more closely resembled malunion with moderate knee disability; there was no evidence of malunion of the tibia with marked knee disability.

2.  From May 15, 2010 to March 4, 2013, the service-connected left leg disability was manifested by knee extension limited to 35 degrees, knee flexion limited to 100 degrees, and complaints of giving way, swelling, and pain. 

3.  For the period beginning March 5, 2013 and thereafter, the service-connected left knee disability was manifested by knee extension limited to 5 degrees, knee flexion limited to 80 degrees, flare-ups, painful motion, and a disability picture that more closely resembled malunion of the tibia with moderate left knee disability; there was no evidence of malunion of the tibia with marked knee disability. 



CONCLUSIONS OF LAW

1. For the period including September 28, 2007 to May 14, 2010, and for the period from March 5, 2013 and thereafter, the criteria for a rating in excess of 20 percent for residuals of a fractured left tibia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Diagnostic Code (Code) 5262-5003 (2012).

2. From May 15, 2010 to March 4, 2013, the criteria for a 40 percent rating, but no higher, for residuals of a fractured left tibia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Code 5262-5003 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. 


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA applies to the instant claim. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

As the April 2008 rating decision on appeal granted service connection for residuals of a fractured left tibia, and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The question of whether a further VCAA letter for such "downstream" issues is required was also addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this opinion, the General Counsel held that, in such circumstances, a Statement of the Case (SOC) was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the necessary SOC was issued in December 2009. 

VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). The Veteran's service treatment records are associated with his claims file, and VA has obtained all pertinent/identified records that could be obtained. The RO arranged for a VA examination that is adequate for rating the disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. 


Merits of the Claim

Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). 

If two ratings are potentially applicable, the higher rating 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 (2012). 

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered

On March 2008 VA examination report, the Veteran complained of left knee pain and instability or giving way, but denied weakness, swelling, heat and redness, locking, fatigability, and lack of endurance. His current complaints also included pain with range of motion and flare-ups that occurred 2 to 3 times a week. He wore a Bledsoe unloader brace and used crutches; pain limited his ambulating distances. The disability effected mobility, activities of daily living, and recreational activities but not his usual occupation or driving. On examination, range of motion testing revealed flexion from 10 degrees to 90 degrees and extension from 90 degrees to 10 degrees; painful motion was present. There was some palpable crepitus of the patella and a click at the lateral aspect of the patella with pain. With repetitive motion there was pain throughout the range of motion but there was no fatigue, weakness, lack of endurance, or incoordination. Objectively, there was evidence of painful motion, tenderness, and guarding of movement due to pain, but there was no edema, effusion, swelling, redness, heat, instability, weakness, or abnormal movement. His gait was slow and stiff and there was no evidence of abnormal weight bearing. There was functional limitation on walking but not standing. Stability testing was negative and ankylosis was not present. X-rays of the left knee revealed increased tricompartmental degenerative changes, and round calcification within the femorotibial joint space that possibly represented loose body.

On May 2010 VA examination, left knee pain continued to be reported and the assistive devices used were a brace, crutches, and a walker; the effectiveness of these devices was poor. There was no indication of flare-ups of bone or joint disease, but his current complaints included giving way, constant pain, and swelling. There was no evidence of bone abnormality but there was joint abnormality with decreased range of motion of 35 degrees to 100 degrees. The Veteran's gait was antalgic, but there was no evidence of abnormal weight bearing. He was unable to stand for more than a few minutes or walk more than a few yards. There was no evidence of genu recurvatum, malunion of the os calcis or astragalus, involucrum, or sequestrum. X-rays of the left knee showed degenerative joint disease with medial joint space narrowing, but he did not appear to have any significant abnormality of his tibia although there was a cortical irregularity along the posterior border that may have represented a normal variant or residual of the previous fracture. 

The VA examiner noted the Veteran reported his left knee disability prevented usual daily activities such as chores, shopping, exercise, sports, recreation, and traveling. The effect on bathing and toileting was severe, but was moderate on dressing.

On March 3013 VA examination, the Veteran reported having a fair response to the medication used to treat his left leg disability. He complained of pain and painful motion. Flare-ups occurred with increased use such as standing for 30 minutes or walking 150 yards. The assistive devices he used were a cane and crutches. He was limited to walking between 100 and 150 yards and standing was limited to 30 minutes. There was no evidence of genu recurvatum, malunion of the os calcis or astragalus, involucrum, or sequestrum. The VA examiner noted the Veteran reported his left knee disability did not prevent any usual daily activities, but there was a severe effect on activities such as exercise, sports, and recreation. The effect on chores and shopping was moderate, and mild on traveling, bathing, dressing, toileting, and grooming.

On physical examination, range of motion studies showed left knee flexion was to 95 degrees with pain beginning at 80 degrees. Knee extension was to 5 degrees with pain beginning at 5 degrees. On repetitive motion, left knee extension and flexion remained unchanged. The functional impairment of the left knee consisted of less movement than normal, pain on movement, instability of station, and disturbance of locomotion. Additional testing revealed full muscle strength in extension and flexion; normal joint stability, and no evidence of recurrent patellar subluxation or dislocation. The left knee disability affected him occupationally in that he was precluded from gainful physical employment that required standing, lifting, loading, squatting, climbing, and crawling, but it did not preclude sedentary employment.

Service connection for the Veteran's left leg disability was established in an April 2008 rating decision based on evidence that linked his current diagnosis of degenerative osteoarthritis to the fractured left tibia with repetitive knee trauma in service. The disability was rated 20 percent disabling under 38 C.F.R. § 4.71a, Code 5262, for tibia and fibula impairment.

On review of the record, the Board finds that it is more appropriate to identify and rate the left leg disability under 38 C.F.R. § 4.71a, Diagnostic Code 5262-5003. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. This enables recognition of the underlying disability and the manifestations upon which the disability is rated. It is permissible for the Board to apply any diagnostic codes deemed most appropriate. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the service-connected left leg disability is manifested by pain, painful motion, limitation of motion, flare-ups, crepitus, disturbance of locomotion, and instability of station, and productive of functional impairment. Since there is an overlap of symptomatology that is considered under Code 5262 and the limitation of flexion and extension Codes (Codes 5260, 5261), the disability may be rated alternatively based on tibia impairment or limitation of motion because manifestations of a disability under multiple diagnoses (i.e., pyramiding) is to be avoided under 38 C.F.R. § 4.14 (2012).

Under Code 5262, a 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability, and a 20 percent rating is assigned for moderate knee or ankle disability. 38 C.F.R. § 4.71a.

Under Code 5003, degenerative arthritis, when substantiated by X-rays, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent disability rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent disability rating is warranted with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. Note 1 accompanying Diagnostic Code 5003 states that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based upon limitation of motion. Id.

Code 5260 provides ratings based upon the limitation of flexion in the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. Id.

Diagnostic Code 5261 provides ratings based upon the limitation of extension in the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id.

Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. Id.

The VA General Counsel held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September 2004).

Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for a slight knee disability. A 20 percent rating is warranted for a moderate knee disability. A 30 percent rating is warranted for a severe knee disability. 38 C.F.R. § 4.71a.

The Board observes that the words "slight", "moderate", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence 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 VA General Counsel has also held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9- 98, (August, 1998). VA's General Counsel  further explained that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Id. In this regard, in applying Diagnostic Code 5003, the Court has held in the case of Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion." See also 38 C.F.R. § 4.59 (2012).

As shown on May 2010 VA examination, the range of left knee extension was significantly decreased when compared to March 2008 VA examination finding. However, March 2013 VA examination findings reflected an improvement that was more consistent with the findings of March 2008. More specifically, left knee extension in May 2010 was limited to 35 degrees versus the other findings that show extension limited to no worse than 10 degrees. Hence, the May 2010 findings more closely approximate the criteria for a 40 percent rating under Code 5261. See 38 C.F.R. § 4.7. There is no lay or medical evidence between the May 2010 and March 2013 VA examinations suggesting that May 2010 findings were not representative of a worsening of the disability as opposed to a temporary flare-up. Therefore, the Board interprets the findings as sufficient to warrant an increase in the disability rating until such time as improvement was shown in March 3013. Since it is more advantageous to rate the Veteran's left knee arthritic, residuals of a left tibia fracture in this manner, a higher rating of 40 percent is assigned from May 15, 2010 to March 4, 2013. 

Prior to May 15, 2010, a rating in excess of 20 percent is not assigned. The record does not reflect malunion of the tibia with marked knee disability or limitation of flexion or extension that would have resulted in a rating in excess of 20 percent. Flexion was only limited to a degree that would have resulted in a non-compensable rating and extension was limited to a degree that would have only provided a 10 percent rating. See 38 C.F.R. § $.71a, Codes 5260, 5261. There was no additional impairment with repetitive motion and the Veteran only had flare-ups a few times a week. Objectively, there was crepitus and he ambulated with the use of a brace and crutches, but the disability did not have an effect on his usual occupation or limit standing. Taking into consideration these findings, the disability more closely approximated tibia malunion with moderate knee disability, which are the criteria for a 20 percent rating under Code 5262.

Beginning March 5, 2013 and thereafter, a rating in excess of 20 percent is also not assigned. The findings on March 2013 VA examination are not significantly different from the March 2008 VA examination findings. Left knee flexion was not limited to a compensable level and extension was limited to 5 degrees with pain that would warrant no higher than a 10 percent rating. There was no additional functional impairment with repetitive motion and muscle strength was normal. Therefore, a higher rating was also not warranted under Codes 5260 or 5261. The Veteran still used assistive devices when ambulating and had some limitation in standing or walking with flare-ups, but the disability primarily had a moderate or mild effect on most of his usual daily activities. Taking into consideration these findings, the disability more closely approximated tibia malunion with moderate knee disability. 

At no time throughout the appeal is a rating based on recurrent subluxation or lateral instability warranted. 38 C.F.R. § 4.71a, Code 5257. While the Veteran did complain of giving way on VA examinations, the examining physicians found that there was no objective evidence of instability or subluxation.

There are other pertinent diagnostic criteria for rating knee disabilities; however, these criteria do not allow for ratings in excess of 10 percent, or the objective evidence of record does not contain any of the relevant findings: ankylosis of the knee (rated under Code 5256); dislocated semilunar cartilage (rated under Code 5258); removal of semilunar cartilage (rated under Code 5259); or genu recurvatum (rated under Code 5263). 38 C.F.R. § 4.71a. As such, ratings under these Codes are not applicable.

To summarize, the preponderance of the evidence is against an initial rating in excess of 20 percent for the period from September 28, 2007 to May 14, 2010. The preponderance of the evidence is also against an initial rating in excess of 20 percent from March 5, 2013 and thereafter. For the period from May 15, 2010 to March 4, 2013, the manifestations of the service-connected left leg disability more closely resemble the criteria for a 40 percent rating, therefore, a higher rating is only assigned for this period.

The Board has considered whether referral for an extraschedular rating is appropriate for the Veteran's left leg disability under the provisions of 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115 (2008).

The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id.  

With respect to the initial inquiry posed by Thun, the Board finds that the Veteran's disability level and symptomatology are contemplated by the rating criteria. The Veteran has not reported any symptoms that produce impairment outside the scope of the criteria and there are no objective findings that suggest the left leg disability produces any unusual manifestations. The manifestations of pain, painful motion, crepitus, limitation of motion, flare-ups, disturbance of locomotion, and instability of station are all contemplated by the schedular criteria. The examiners did not report an exceptional disability picture with symptoms not represented in the rating schedule. There is no indication that the average industrial impairment from the left leg disability would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. 


ORDER

From September 28, 2007 to May 14, 2010 and from March 5, 2013 and thereafter, an initial rating in excess of 20 percent for residuals of a fractured left tibia is denied.


From May 15, 2010 to March 4, 2013, an initial rating of 40 percent for residuals of a fractured left tibia is granted, subject to the regulations controlling disbursement of VA monetary benefits.



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs