Citation Nr: 1621443	
Decision Date: 05/27/16    Archive Date: 06/08/16

DOCKET NO.  13-16 581	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine.

2.  Entitlement to a rating in excess of 10 percent for right leg strain, status post fracture of the right tibia.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU rating).


REPRESENTATION

Veteran represented by:	Lynn Mizell, Esq.

WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

L. B. Yantz, Counsel
INTRODUCTION

The appellant is a Veteran who served on active duty from March 1954 to March 1957.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO) and from an April 2014 rating decision of the Columbia, South Carolina VA RO.  The record is now in the jurisdiction of the Columbia RO.  In January 2016, a videoconference hearing was held before the undersigned; a transcript is in the record.  From the date of the hearing, the record was held open for 60 days (plus 30 days thereafter), and in April 2016 additional evidence was submitted (with a waiver of initial RO consideration, pursuant to 38 C.F.R. § 20.1304).

[Regarding issues seeking higher ratings for bilateral lower extremity radiculopathy, the Veteran filed a June 2015 notice of disagreement (NOD) (electing the Decision Review Officer (DRO) process) with the denial of higher ratings in a June 2015 rating decision.  Regarding the issues seeking a higher rating and earlier effective date for persistent depressive disorder, the Veteran filed a July 2015 NOD (electing the DRO process) with the initial rating and effective date assigned by a December 2014 rating decision.  Thereafter, the RO took action in accordance with 38 C.F.R. § 19.26(a) by providing him explanation of the DRO process in two July 2015 letters, acknowledging both his June 2015 and July 2015 NODs.  The RO is currently preparing a statement of the case (SOC) addressing these issues, and such action precludes the need for the Board to remand them for issuance of a SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).]

The issues of service connection for a right hip disability (raised at the Veteran's January 2016 hearing) and for bladder cancer (raised in an April 2016 VA Form 21-526b) have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015); see 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 CFR Parts 3, 19, and 20 (2015)).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran's lumbar spine disability is shown to be manifested by forward flexion to 30 degrees or less when considering his complaints of pain and functional loss; ankylosis, incapacitating episodes (of bedrest prescribed by a physician), and associated neurological manifestations [other than the radiculopathy of both lower extremities which is already service-connected] are not shown.

2.  The Veteran's right tibia disability is shown to be manifested by malunion of the tibia and fibula with marked right ankle disability and ankylosis of the right ankle in plantar flexion less than 30 degrees and dorsiflexion at 0 degrees; related nonunion of tibia and fibula, ankylosis of the ankle in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees, abduction or adduction or inversion or eversion deformity of the ankle, ankylosis of the knee, recurrent subluxation or lateral instability of the knee, dislocated (or removal of) semilunar cartilage in the knee, compensable limitation of flexion or extension of the knee, and genu recurvatum of the knee are not shown.

3.  The combined rating for the Veteran's service-connected disabilities is now 90 percent (with at least one rated 40 percent or more); it is reasonably shown that they preclude him from maintaining substantially gainful employment.


CONCLUSIONS OF LAW

1.  A 40 percent (but no higher) rating is warranted for the Veteran's lumbar spine disability.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5242 (2015).

2.  A 30 percent (but no higher) rating for right tibia disability is warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5262 (2015).

3.  The schedular requirements for a TDIU rating are met; a TDIU rating is warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2015); Rice v. Shinseki, 22 Vet. App. 447 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims.

Regarding the claims for increased ratings for the Veteran's lumbar spine disability and right tibia disability, VA's duty to notify was satisfied by letters in November 2011 (for the lumbar spine and right tibia disabilities) and in December 2013 (for the right tibia disability).  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  At the hearing before the undersigned, the Veteran was advised of the criteria for higher ratings for his lumbar spine and right tibia disabilities.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).

Regarding the claim for a TDIU rating, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice or duty to assist omission is harmless.

The Veteran's pertinent treatment records have been secured.  [Although he receives Social Security Administration (SSA) disability benefits, SSA has informed VA on multiple occasions (most recently in May 2015) that his medical records have been destroyed and are unavailable, and VA has duly notified him of the unavailability of his SSA records.]  The AOJ arranged for pertinent VA examinations in November 2011, January 2013, May 2014, and May 2015.  The Board finds that the reports of these VA examinations contain sufficient specific clinical findings and informed discussion of the history and features of (as well as functional impairment due to) the Veteran's lumbar spine and right tibia disabilities to constitute probative medical evidence adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the matters of the ratings for the Veteran's lumbar spine disability and right tibia disability (as well as entitlement to a TDIU rating), and that no further development of the evidentiary record in these matters is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided.

Ratings - in general

In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where 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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In determining the degree of limitation of motion for the Veteran's lumbar spine and right tibia disabilities, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  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 disease.  38 C.F.R. § 4.45.



Rating for Lumbar Spine Disability

The Veteran's lumbar spine disability has been rated under Code 5242 and the General Rating Formula for Diseases and Injuries of the Spine, which provide the following criteria for rating the disability with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Code 5242.

Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Code 5242, Note (1).

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees.  38 C.F.R. § 4.71a, Code 5242, Note (2).  All measured ranges of motion are to be rounded to the nearest five degrees.  38 C.F.R. § 4.71a, Code 5242, Note (4).

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a, Code 5242, Note (5).

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the following ratings are applied.  A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks per year.  A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks per year.  A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks but less than twelve weeks per year.  An "incapacitating episode" is defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician."  38 C.F.R. § 4.71a, Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).

The Veteran filed the instant claim for an increased rating for his lumbar spine disability in October 2011.  Throughout the entire evaluation period, the Veteran's lumbar spine disability is shown to be manifested by forward flexion to 30 degrees or less when considering his complaints of pain and functional loss.  On November 2011 VA spine examination, forward flexion of his thoracolumbar spine measured 40 degrees (to include after repetitive testing), and it was noted that he also had functional loss/impairment and/or additional limitation of range of motion due to factors including pain on movement (though flare-ups were denied).  Private treatment records noted that his active range of motion of lumbar flexion showed "severe impairment" on three occasions in November 2012, manifested by "pain during initial ranges of active lumbar flexion."  On January 2013 VA spine examination, forward flexion of his thoracolumbar spine measured 35 degrees (to include after repetitive testing), and it was noted that painful motion began at 30 degrees and that he also had functional loss/impairment and/or additional limitation of range of motion due to factors including pain on movement.  VA treatment records document that the Veteran had a spinal cord stimulator (SCS) surgically implanted in November 2014.  [There is no evidence of this November 2014 surgery resulting in at least one month of convalescence or any severe postoperative residuals to warrant consideration of a temporary total rating under 38 C.F.R. § 4.30.]  On May 2015 VA spine examination, forward flexion of the thoracolumbar spine was to 35 degrees, and he was unable to perform repetitive testing due to his subjective complaints of pain (though flare-ups were denied).  At his January 2016 hearing, he testified how his various treatment methods (including the SCS, epidural injections, pain medication, muscle relaxers, and physical therapy) had not adequately helped with his back pain; he also testified with regard to his functional limitations (i.e., how he could not lift more than a grocery bag, he was only able to bend "very little" and could not stoop down, prolonged sitting caused pain, and he had not slept in a bed in almost two years); he further testified that doctors had recommended spinal fusion surgery, but that the risks were too high for him to undergo such a procedure.

However, throughout the evaluation period, ankylosis, incapacitating episodes (of bed rest prescribed by a physician), or associated neurological manifestations [other than the radiculopathy of both lower extremities which is already service-connected] have not been shown at any time.  Regarding ankylosis, range of motion studies throughout the record (including on November 2011, January 2013, and May 2015 VA spine examinations) revealed that the Veteran's lumbar spine is not ankylosed.  While the May 2015 VA examiner noted under a section entitled "Additional factors contributing to disability" that the Veteran had "Less movement than normal due to ankylosis, adhesions, etc.," another section of the same examination report definitively noted that there was no ankylosis of the spine; the Board finds the latter finding (of no ankylosis) to be more specific and therefore more probative.  Regarding incapacitating episodes (of bed rest prescribed by a physician), there is no evidence in the record (including in complaints and history elicited on November 2011, January 2013, and May 2015 VA spine examinations) that the Veteran ever had bed rest prescribed by a physician for his lumbar spine disability.  While it was noted on January 2013 VA spine examination that he had flare-ups and could get spasms on average of once a month, where it felt like there was a knife in his back and he could not get up, these episodes were described as lasting about 15 minutes and were not alleged to have required any physician-prescribed bed rest, to include for a total duration of at least six weeks (as would be required for the next higher rating of 60 percent under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes).  Regarding neurological manifestations, the Veteran has separately rated radiculopathy of both lower extremities (and at the time of this decision, he has separately appealed the ratings assigned for such and the RO is currently preparing a SOC addressing these issues, so those ratings are not at issue herein).  There is no evidence in the record (including in complaints and history elicited on November 2011, January 2013, and May 2015 VA spine examinations) that the Veteran has manifested any other neurological abnormalities associated with his lumbar spine disability.  While an April 2012 private treatment record notes his report of frequent urination, such was not linked to his lumbar spine disability; in addition, private treatment records dating from February 2016 through April 2016 noted urinary frequency and urgency, but such symptoms were attributed to bladder cancer, and not to his lumbar spine disability.

As outlined above, the evidence of record throughout the period being considered documents that the Veteran's lumbar spine disability has been manifested by forward flexion to 30 degrees or less when considering his complaints of pain and functional loss.  Accordingly, the Board finds that a 40 percent (but no higher) rating is warranted for the Veteran's lumbar spine disability throughout.  See 38 C.F.R. § 4.71a, Code 5242; see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505.

Consideration has been given regarding whether the schedular evaluation for the Veteran's lumbar spine disability is inadequate, requiring referral of the claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b)(1).  Extraschedular consideration involves a three-step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology.  If the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization is found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating.

Here, the schedular criteria provide for ratings in excess of those assigned for greater degrees of lumbar spine disability, but such greater degrees of disability are not shown.  [While it was noted on VA examinations that he regularly used a cane (in January 2013) and occasionally used a wheelchair (in May 2015) for assistance with locomotion, and while he testified at his January 2016 hearing that he was unable to have spinal fusion surgery due to the risks involved, these findings have not been shown to demonstrate severity of disability which is equivalent to or greater than ankylosis in the lumbar spine, and the Veteran has not presented any such arguments.  The impact of the Veteran's lumbar spine disability on his ability to maintain gainful employment is discussed below.]  The diagnostic criteria encompass all symptoms and related functional impairment of the lumbar spine disability shown during the period of time considered and therefore those criteria are not inadequate, and referral of this matter for consideration of an extraschedular rating is not warranted.

Rating for Right Tibia Disability

The Veteran's right tibia disability has been rated under Code 5262, which provides the following criteria for impairment of tibia and fibula.  A 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability.  A 20 percent rating is warranted for malunion of tibia and fibula with moderate knee or ankle disability.  A 30 percent rating is warranted for malunion of tibia and fibula with marked knee or ankle disability.  A 40 percent rating is warranted for nonunion of tibia and fibula, with loose motion, requiring a brace.  38 C.F.R. § 4.71a, Code 5262.

Codes 5270 through 5274 provide for alternate ways of evaluating ankle disability.  Under Code 5270, a 20 percent rating is warranted for ankylosis of the ankle in plantar flexion less than 30 degrees; a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees; and a 40 percent rating is warranted for ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity.  Under Code 5271, a 10 percent rating is warranted for moderate limitation of motion of the ankle; and a 20 percent rating is warranted for marked limitation of motion of the ankle.  Additionally, Code 5272 pertains to ankylosis of the subastragalar or tarsal joint, Code 5273 pertains to malunion of os calcis or astragalus, and Code 5274 pertains to astragalectomy; however, none of these conditions have been shown in the current case for the Veteran's right ankle.  38 C.F.R. § 4.71a, Codes 5270-5274.

Codes 5256 through 5263 provide for alternate ways of evaluating knee disability.  Under Code 5260, limitation of flexion of the leg warrants a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a 30 percent rating when limited to 15 degrees.  Under Code 5261, limitation of extension of the leg warrants a 0 percent rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a 50 percent rating when limited to 45 degrees.  Additionally, Code 5256 pertains to ankylosis of the knee, Code 5257 pertains to recurrent subluxation or lateral instability of the knee, Code 5258 pertains to dislocated semilunar cartilage in the knee, Code 5259 pertains to removal of semilunar cartilage in the knee, and Code 5263 pertains to genu recurvatum of the knee; however, none of these conditions have been shown in the current case for the Veteran's right knee.  38 C.F.R. § 4.71a, Codes 5256-5263.

The Veteran filed the instant claim for an increased rating for his right tibia disability in October 2011.  [The Board notes that, prior to the April 2014 rating decision on appeal, a March 2012 rating decision denied a rating in excess of 10 percent for the Veteran's right tibia disability.  Within the year following that decision, new and material evidence in the matter was received (i.e., a November 2012 private treatment record submitted in January 2013 which noted the lack of range of motion in his right ankle); therefore, the current evaluation period extends back to the date of the October 2011 claim, pursuant to 38 C.F.R. § 3.156(b).]  Throughout the entire evaluation period, the Veteran's right tibia disability is shown to have been manifested by malunion of the tibia and fibula with marked right ankle disability and ankylosis of the right ankle in plantar flexion less than 30 degrees and dorsiflexion at 0 degrees.  On November 2011 VA ankle examination, no findings were provided for the right ankle, as only the left ankle was then examined; however, the examination report noted the results of April 2009 VA x-rays of the Veteran's right tibia/fibula which showed "near anatomic alignment is present," thereby indicating some malunion of tibia and fibula.  An April 2012 private treatment record noted decreased range of motion of his right ankle, and a November 2012 private treatment record noted the lack of range of motion in his right ankle.  On May 2014 VA ankle examination, plantar flexion and dorsiflexion of his right ankle each measured 0 degrees (though flare-ups were denied), and ankylosis was noted in the right ankle in plantar flexion less than 30 degrees; it was further noted that he also had functional loss/impairment and/or additional limitation of range of motion due to factors including atrophy of use.  An October 2015 VA treatment record noted moderate to severe medial collapse of his right foot/ankle and an inability to plantarflex/dorsiflex his foot.  At the January 2016 hearing, he testified that he could not walk on his right leg and was "having a harder time all the time."

However, at no time during the evaluation period, are nonunion of tibia and fibula, ankylosis of the ankle in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees, abduction or adduction or inversion or eversion deformity of the ankle, ankylosis of the knee, recurrent subluxation or lateral instability of the knee, dislocated (or removal of) semilunar cartilage in the knee, compensable limitation of flexion or extension of the knee, or genu recurvatum of the knee shown.  Regarding flexion and extension of the knee, range of motion studies throughout (including on November 2011, January 2013, and May 2015 VA knee/lower leg examinations) revealed that right knee motion was no worse than 90 degrees of flexion and 0 degrees of extension, even when considering complaints of pain and following repetitive testing.  Regarding knee stability, no stability testing during the evaluation period revealed instability in the Veteran's right knee.  While a May 2015 VA knee examiner noted under a section entitled "Additional factors contributing to disability" that the Veteran had "Instability of station," another section of the same examination report definitively noted that there was no instability in the right knee upon testing; the Board finds the latter finding (of no instability) to be more specific (i.e., to the knee) and therefore more probative.  Furthermore, while the Veteran testified at his January 2016 hearing that he had problems with balance "lots of times," the Board finds that the medical testing for instability (all negative throughout the evaluation period) is more probative than the Veteran's lay statements regarding balance (inasmuch as such testimony actually referred to knee stability, which was not clarified by the Veteran).

As outlined above, the evidence of record throughout documents that the Veteran's right tibia disability has been manifested by malunion of the tibia and fibula with marked right ankle disability and ankylosis of the right ankle in plantar flexion less than 30 degrees and dorsiflexion at 0 degrees.  Accordingly, the Board finds that a 30 percent (but no higher) rating is warranted for the Veteran's right tibia disability throughout.  See 38 C.F.R. § 4.71a, Code 5262; see also Francisco, 7 Vet. App. at 55, 58; see also Hart, 21 Vet. App. at 505.

While the Veteran's attorney argued in an April 2016 statement that the Veteran's right ankle and right tibia should be rated separately, the Board notes that Code 5262 dictates that tibia and fibula impairment is to be rated as either knee or ankle disability.  Accordingly, the Board finds that assigning a separate rating for ankle disability (under Code 5270, 5271, 5272, 5273, or 5274) would constitute pyramiding in the current case.  See 38 C.F.R. § 4.14.  In addition, while the Veteran testified at his January 2016 hearing that one leg was shorter than the other and that this leg length discrepancy (of approximately one inch) caused an uneven gait, the Board finds that he cannot be separately rated under Code 5275 for shortening of bones of the lower extremity, because a Note under Code 5275 states that this Code is not to be combined with other ratings for fracture or faulty union in the same extremity, and the Veteran is already receiving a (now higher) rating for malunion of his right tibia and fibula under Code 5262.  [The Board also notes that the Veteran has been separately rated for scar, status post right upper tibia fracture repair, and that such disability is not on appeal.]

Consideration has been given regarding whether the schedular evaluation for the Veteran's right tibia disability is inadequate, requiring referral of the claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation.  38 C.F.R. § 3.321(b)(1).  The three-step analysis for extraschedular consideration has been outlined above.  See Thun, 22 Vet. App. at 111.

Here, the schedular criteria provide for ratings in excess of those assigned for greater degrees of right tibia disability (to include under other diagnostic codes pertaining to either the ankle or the knee), but such greater degrees of disability are not shown.  [While it was noted on VA examinations that he constantly used a cane (in May 2014) and occasionally used a wheelchair (in May 2015) for assistance with locomotion, and while he testified at his January 2016 hearing that he used electric carts to get around in stores, these findings have not been shown to demonstrate severity of disability which is equivalent to or greater than nonunion of tibia and fibula, ankylosis of the ankle in plantar flexion at more than 40 degrees or dorsiflexion at more than 10 degrees, abduction or adduction or inversion or eversion deformity of the ankle, ankylosis of the knee, recurrent subluxation or lateral instability of the knee, dislocated (or removal of) semilunar cartilage in the knee, compensable limitation of flexion or extension of the knee, or genu recurvatum of the knee, and the Veteran has not presented any such arguments.  The impact of the Veteran's right tibia disability on his ability to maintain gainful employment is discussed below.]  The diagnostic criteria encompass all symptoms and related functional impairment of the right tibia disability shown during the period of time considered and therefore are not inadequate, and referral of this matter for consideration of an extraschedular rating is not warranted.

The Board additionally notes that the Veteran does not meet the criteria for special monthly compensation (SMC) based on loss of use of the right foot, as his right tibia disability has not manifested in any of the following: no effective function remaining other than that which would be equally well served by an amputation stump with prosthesis; extremely unfavorable complete ankylosis of the knee; complete ankylosis of two major joints of the right lower extremity; shortening of the lower extremity of three and a half inches or more; or complete paralysis of the external popliteal nerve.  See 38 U.S.C.A. § 1114; see also 38 C.F.R. §§ 3.350(a)(2), 4.63.

TDIU Rating

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered.  38 C.F.R. §§ 3.340, 3.341, 4.16.

A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

Because the Veteran has asserted that he is entitled to a TDIU rating due to his service-connected disabilities (including of the lumbar spine and the right lower extremities), and because increased rating claims for such disabilities are being addressed in this decision, a claim for TDIU is raised in the context of the increased rating claims on appeal.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).

The record reflects that the Veteran's highest level of education is four years of high school (which he finished after he got out of service).  His employment experience consisted of working in construction until leaving his most recent job in 1995.

On November 2011 VA spine examination, it was noted that the Veteran's functional limitations with activities of daily living included being unable to walk for more than a few minutes, unable to stand for more than 5 to 10 minutes, unable to sit for more than 30 minutes, and unable to lift more than a grocery bag.  Private (November 2012) and VA (January 2013 and May 2015) medical providers have opined that the Veteran's service-connected disabilities severely restrict his ability to participate in gainful employment, with the latter two indicating that he is limited to sedentary forms of employment.  Thereafter, at the January 2016 hearing, the Veteran testified that he could not perform any type of physical work, and he also testified that prolonged sitting exacerbated his pain (thereby precluding sedentary employment).  An April 2016 vocational assessment noted as follows: "The medical/functional information reviewed offers no reasonable expectation for substantial future improvement as to facilitate a return to substantially gainful employment....[The Veteran's] service connected conditions, in and of themselves, are of such severity as to warrant unemployability....Considering all the above, as well as my vocational research and analysis[,] it is my expert opinion, that it is at least as likely as not that [the Veteran] does NOT have the ability to obtain and/or sustain substantially gainful employment based on the disabling factors associated with his service connected conditions."

The Veteran meets the schedular percentage requirements for a TDIU rating, as the combined rating for his service-connected disabilities is now 90 percent (see 38 C.F.R. § 4.25), and he has at least one disability rated 40 percent or more (see 38 C.F.R. § 4.16(a)).  Furthermore, the evidence of record reasonably shows that his service-connected disabilities preclude him from securing and maintaining substantially gainful employment consistent with his work history and education.  Medical professionals have described the limiting effects of the Veteran's service-connected lumbar spine and right tibia disabilities on his ability to work (even not accounting for the impact of a 50 percent disabling psychiatric disability which reflects reduced reliability and productivity).  The Board finds reasonably persuasive the April 2016 vocational assessment essentially to the effect that the service-connected disabilities render the Veteran unemployable.  Accordingly, a TDIU rating is warranted.




ORDER

An increased (to 40 percent, but no higher) rating is granted for degenerative disc disease of the lumbar spine, subject to the regulations governing payment of monetary awards.

An increased (to 30 percent, but no higher) rating is granted for right leg strain, status post fracture of the right tibia, subject to the regulations governing payment of monetary awards.

A TDIU rating is granted, subject to the regulations governing payment of monetary awards.


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs