Citation Nr: 1335511 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-11 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected status post stress fracture of the right tibia. 2. Entitlement to an initial compensable disability rating for service-connected status post stress fracture of the left tibia. REPRESENTATION Veteran represented by: Non-Commissioned Officers Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from October 2002 to July 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in May 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In July 2010, the Veteran testified at a video conference hearing before a member of the Board. The Board notes that the Veterans Law Judge (VLJ) who conducted the hearing has since left the Board's employ. The Veteran was offered another hearing by a February 2013 letter. He did not respond. The Board remanded the case in March 2011 for further development and adjudicative action. The Veteran was afforded an additional VA examination and the development required by the remand was completed. FINDING OF FACT The Veteran's disabilities of the tibiae are manifested by complaints of pain and tenderness with no malunion of a tibia or any limitation of a joint. CONCLUSION OF LAW The criteria for an initial compensable rating for status post stress fracture of the right tibia or left tibia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5262 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's initial compensable rating claims arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a July 2010 hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his 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 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform ratings are appropriate. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C .F.R. § 4.59. The words "slight," "moderate" and "marked" are not defined in the Rating Schedule. 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 a rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Residuals of stress fractures of the tibiae with shin splints are not listed as specific disabilities under VA's Rating Schedule. Where VA's Rating Schedule does not list a specific disability, the disability is rated under criteria where the functions affected, anatomical location, and symptomatology are analogous. 38 C.F.R. § 4.20. Here, as determined by the RO, the Veteran's service-connected tibiae disabilities are most closely analogous to the impairment of the tibia and fibula under 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2013). Diagnostic Code 5262 allows for a 10 percent rating for malunion of the tibia and fibula with a slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia and fibula with a moderate knee or ankle disability. A 30 percent rating is assigned for malunion of the tibia and fibula with a marked knee or ankle disability. A 40 percent rating is assigned for nonunion of the tibia and fibula with loose motion, requiring a brace. The Veteran, through his representative, argued in a September 2012 Informal Hearing Presentation, that he has knee problems attributable to his service-connected tibia disabilities. By history, the Veteran had x-rays of the tibiae in October 2004, which revealed bilateral, early grade 1 stress fractures in the distal one-third of the tibiae and he was diagnosed with bilateral shin splints. The Veteran was provided a VA general medical examination in October 2006. The Veteran said that he had pain at 7 out of 10 in his lower legs. He could not stand for a long time and could not walk long distances. X-rays of the Veteran's tibiae indicated no acute bony fracture and no other significant osseus abnormalities. He was diagnosed with bilateral shin splints, by history. A note from the Veteran's private physician, dated in August 2009, indicates that the Veteran continued to suffer from significant pain involving his tibiae with weight bearing and activities. A private treatment record dated in September 2009 indicated no swelling or redness in the tibial region, but the Veteran had intermittent pain. The Veteran was afforded another VA examination in October 2009. The Veteran reported shin splints and pains at 8 or 9 out of 10, averaging two to three times per week, for the previous three years. The Veteran reported no restriction of daily routine simple activity or the usual duties of his occupation; however, he had problems with standing more than 20 to 30 minutes, walking more than 1/4 mile or carrying more than 30 pounds. On objective examination, there was minimal tenderness present over the mid-shafts of both tibiae anteriorly. There were no obvious deformities of the tibiae, no inflammation, atrophy or wasting. Muscle power was normal, gait was normal, sensation was normal, circulation was normal. The Veteran had a bone scan of the tibiae and fibulae with symmetrical uptake in the right and left tibiae and fibulae. There was no significant focal increased uptake identified. The examiner indicated that it was his opinion that the Veteran's medical condition was not preventing him from doing his daily routine activities or sedentary jobs. The Veteran testified in March 2011 concerning the pain in his tibiae and indicated that he could not run or stand for long periods. The Veteran was afforded a VA examination in May 2011. The Veteran indicated at that time that his knees were bothering him as well as his shins; however, he had no ankle pain. The examiner indicated that there was no arthritis. The examiner performed a full knee examination and diagnosed a bilateral knee strain with a meniscus problem in the right knee; however, he indicated that the Veteran's stress fractures of the tibiae did not involve the knee joint or the ankle joint. Thus, any current knee or ankle condition was less likely than not related to the Veteran's service-connected bilateral tibial stress fractures. The Veteran reported that the Veteran's ranges of motion of the knee were normal. The examiner declined to diagnose the Veteran with a current tibia disability, instead indicating a history of bilateral tibial shaft stress fractures. Taking into account all of the evidence of record, the Board finds that the preponderance of the evidence weighs against the award of a compensable rating for the either tibia disability. The evidence of the record reflects that there is no malunion of the tibia, which is necessary for a compensable rating under Diagnostic Code 5262. The VA examination reports indicated no findings providing evidence that the tibia disabilities manifested in any knee or ankle disability. In this regard, the Board notes that the medical evidence adequately distinguishes between the symptomatology associated with the Veteran's service-connected tibia disabilities and his knee disabilities. Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so). The most recent VA examination considered this question and the examiner diagnosed a bilateral knee strain with a meniscus problem in the right knee; however, he clearly indicated that the Veteran's stress fractures of the tibiae did not involve the knee joint or the ankle joint. Thus, the Board finds the objective medical evidence indicates that a joint disability is not attributable to the service-connected disabilities currently on appeal. The Veteran himself believes that his knee disabilities are residuals of his service-connected bilateral stress fractures of the tibiae. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time, the reported delayed onset of the knee problems, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address the etiology of his current knee disabilities. Additionally, there is no suggestion of malunion of the tibia. Thus, a compensable rating is not warranted for the service-connected tibia disabilities under Diagnostic Code 5262 or any other diagnostic code, namely 5312 for impairment of Muscle Group XII. The findings on examination do not reflect actual functional impairment of muscle. Additionally, there is no indication of any joint problem due to the fracture residuals. Consequently, the evidence does not support a higher rating on the basis of functional limitation due to weakness, fatigability, incoordination, or pain on movement of a joint. See 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Board must also determine whether the schedular evaluation is inadequate, thus requiring referral of a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran'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 or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, 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. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. An evaluation in excess of that assigned is provided for certain manifestations of a service-connected tibia disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorders and the Veteran reported in July 2010 that he was working full time for the government at a desk job. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to an initial compensable disability rating for service-connected status post stress fracture of the right tibia is denied. Entitlement to an initial compensable disability rating for service-connected status post stress fracture of the left tibia is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs