Citation Nr: 1752426 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 10-22 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a compensable initial rating, and a rating in excess of 10 percent, from September 23, 2011 for residuals of a fracture to the right fibula. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Miranda Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to December 1964. This case comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2011, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In May 2013, the Board remanded this appeal for additional development. The appeal has returned to the Board for appellate consideration. In an April 2016 rating decision, the RO granted entitlement to a 10 percent rating, effective September 23, 2011 under Diagnostic Code 5300-5260 of 38 C.F.R. § 4.71. The Board has recharacterized the issue accordingly. FINDINGS OF FACT 1. Despite his complaints of pain, there was no evidence that the Veteran's right fibula fracture resulted in pain on motion, functional loss, limitation of motion, instability, or other impairment, for the period prior to September 23, 2011. 2. Even considering his complaints of pain and functional loss, the residuals of the Veteran's right fibula fracture resulted in limitation of flexion no worse than 70 degrees and normal extension, for the appeal period from September 23, 2011. 3. For the appeal period from September 23, 2011, the residuals of the Veteran's right fibula fracture were manifested by, at worst, mild instability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for residuals of a fracture of the right fibula prior to September 23, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103(A), 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2016). 2. The criteria for an initial rating in excess of 10 percent for residuals of a fracture of the right fibula characterized as painful motion from September 23, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103(A), 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2016). 3. The criteria for an initial rating of 10 percent, but no higher, for residuals of a fracture of the right fibula characterized by instability, from September 23, 2011, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103(A), 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.6, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board remanded the matter in March 2013 to obtain updated treatment records and afford the Veteran a new VA examination. Both actions were accomplished. There has been substantial compliance with the Board's remand directives and no further development is required. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, 287 F.3d 1377 (Fed. Cir. 2002) (holding that there was no Stegall violation when there has been substantial compliance with the Board's remand order). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Individual disabilities are assigned separate Diagnostic Codes. 38 C.F.R. § 4.27. When a question arises as to which of two disability evaluations applies under a particular Diagnostic Code, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In addition, consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a , Diagnostic Codes 5003 and 5010. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. A 10 percent evaluation is provided for slight disability, a 20 percent evaluation is provided for moderate disability, and a 30 percent evaluation is provided for severe disability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Normal ranges of motion of the leg are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 addresses limitation of flexion of the leg. The code provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261, evaluating limitation of extension of the leg, provides a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a Diagnostic Code 5261. Under Diagnostic Code 5262, a 20 percent is assigned for moderate knee or ankle disability, a 30 percent rating is assigned for malunion with marked knee or ankle disability, and a 40 percent is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262 . The Rating Schedule does not define the terms "slight," "mild," "moderate," "marked," and "severe," and VA evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). In VA Fast Letter 06-25 (November 29, 2006), VA's Compensation & Pension Service noted that to properly evaluate any functional loss due to pain, examiners, at the very least, should undertake repetitive testing (to include at least three repetitions) of the joint's range of motion, if feasible. It was determined that such testing should yield sufficient information on any functional loss due to an orthopedic disability. Additionally, under VAOPGCPREC 9-2004 (Sept. 17, 2004), separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for limitation of flexion and limitation of extension of a single knee joint. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5003, 5010, 5256, 5260, and 5261) or instability (Code 5257, 5262, and 5263). See VAOPGCPREC 9-2004 (September 17, 2004) and VAOPGCPREC 23-97 (July 1, 1997) (compensating claimant for separate functional impairments under Diagnostic Codes 5257 and 5003 does not constitute pyramiding). Where a veteran has degenerative joint disease which is evaluated under DC 5003, a separate, compensable evaluation may be assigned under DC 5257 or 5259 if there are concomitant symptoms, such as knee instability or subluxation. See VAOPGCPREC 9-98; VAOPGCPREC 23-97. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 ; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the 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) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The RO changed the original Diagnostic Code from 5262 to 5003-5260 pertaining to the evaluation of the Veteran's service-connected right leg disability and granted entitlement of a 10 percent rating for painful movement. The change did not sever service connection, but rather more appropriately captured the nature of his disabilities. See Read v Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). Additionally, the change in Diagnostic Code led to an increase in the Veteran's disability ratings based on his symptomatology-a decrease in range of motion due to arthritic pain. As such, the change is not prejudicial, but proper. The Veteran is competent to report symptoms of his leg disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not competent to identify a specific level of disability. Such competent evidence concerning the nature and extent of the Veteran's service-connected leg disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board accords the objective records greater weight than the Veteran's subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). At the November 2007 examination, the Veteran complained of instability, pain, weakness, stiffness, swelling, heat, and redness. He said he could not stand for an hour before needing to sit down due to calf pain, but denied "flare-ups" of pain and functional loss. The examiner diagnosed the Veteran with an "old right fibula fracture (healed)." The examiner stated that the Veteran's disability did not interfere with daily life activities. The examiner reported that the Veteran's distal and proximal joints were not affected by his leg injury, in addition to having normal weight bearing and a brisk gait. The examiner also noted a lack of painful motion, weakness, redness, or heat. The examiner did not indicate any range of motion testing. VA treatment records for the period prior to September 2011 are limited. There are multiple records from 2010 noting the evaluation for complaints of knee pain. However, those records pertain to the left knee not the right knee. For the period prior to September 24, 2011, there is no objective evidence of compensable right knee disability. X-rays taken in November 2007 were negative for arthritis. Further, despite his complaints of knee pain, there was no evidence of pain on motion or any type of functional loss due to pain. The Board emphasizes that pain in and of itself does not warrant compensation. There must be some area of functional loss, which was not shown. The criteria for a compensable rating under Diagnostic Codes 5003, 5260, 5261, or 5262 is not warranted. Consideration has been given to the Veteran's complaints of instability during his November 2007 examination. However, he is not found to be competent to report the presence of subluxation, as it is not a condition that a person without medical expertise could recognize or diagnose. Indeed, on physical examination in November 2007, there was no objective evidence of instability. There is also no contemporaneous medical evidence documenting instability. To the contrary, it was not until 2012 when there was some documentation of instability, which at that time was assessed as mild. A compensable rating under Diagnostic Code 5257 is thereby not warranted. At the September 2011 hearing, the Veteran testified that his symptoms had worsened with time and limited his ability to walk and climb stairs. The Veteran also testified that his symptoms had caused instability and weakness, a cramped muscle at the site of the bone fracture and that he must take breaks when walking or standing for more than about 15 minutes. At the February 2014 VA examination, the Veteran denied "flare-ups." The examiner stated that the Veteran suffered no limitation of range of motion in the right knee, but noted observable pain at 70 degrees of flexion. Testing of leg extension resulted in no limitation. Repetitive use testing did not show any further limitation of motion. The examiner specified the Veteran's regular use of a cane, right knee pain with prolonged walking, that in cold weather and with prolonged standing or walking the Veteran experienced a boring-type pain in the gastrocnemius muscle, but no muscle weakness secondary to his remote right fibula fracture was noted. Functionality testing revealed that the Veteran's right knee and lower leg disability interferes with movement, locomotion, sitting, standing, and weight bearing. July 2015 VA treatment records document right knee pain upon weight bearing. The records indicate right knee flexion to 120 degrees and full extension with no effusion, moderate tibial hypertrophy, no focal tenderness, mild medial laxity and crepitation. An X-ray taken in December 2012, showed mild degenerative changes with joint space narrowing of the medial tibiofemoral joint space small marginal osteophytes, and a mild medial subluxation of the femur on the tibia. See July 2015 VA Medical Records. From September 23, 2011, the Veteran has already been awarded entitlement to a 10 percent rating based on painful motion pursuant to 38 C.F.R. § 4.59. A rating in excess of 10 percent under Diagnostic Code 5260 requires flexion limited to 30 degrees or, extension limited to 15 degrees. The Veteran has, at worst, 70 degrees of flexion in the leg and no limitation of extension. Further, as extension was normal, there is no basis for assigning separate compensable ratings based on limitation of motion. Therefore, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. There is also no basis for assigning a higher rating under Diagnostic Code 5262. Moderate impairment of the knee due to malunion is not shown. None of the existing x-rays describe malunion. Moreover, the 2014 VA examination, which was prepared using a Disability Benefits Questionnaire (DBQ), did not identify moderate impairment. The DBQ was prepared by a medical professional who formulated that conclusion based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusion made by the examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Notwithstanding the foregoing, the Board finds that from September 23, 2011, the Veteran is entitled to a rating of 10 percent for instability under Diagnostic Code 5257. The X-ray of 2012 shows a mild medial subluxation of the femur on the tibia. The Board also notes that the Veteran complained that he has pain on weight bearing, regularly uses a cane for assistance and feels unstable. Moderate instability has not been shown, however. The x-ray report clearly noted mild subluxation. Moreover, when he was tested in 2014, there was no objective findings of instability. Therefore, a rating of 10 percent, but no higher, is warranted under Diagnostic Code 5257. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that at his VA examinations, the Veteran reported pain or instability in his leg. The Veteran is currently rated separately for painful motion and lateral subluxation. However, at no time has there been a finding of functional loss due to pain, weakened movement, excess fatigability, or incoordination. The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet.App. 32 (2011). Instead, Mitchell explained that pursuant to 38 C.F.R. § 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. § 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a scheduler rating in excess of 10 percent for functional impairment of the right knee. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board additionally considered whether the Veteran could receive a higher rating under alternative Diagnostic Codes. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For the entire appeal period, the Veteran did not have any diagnosis of ankylosis of the knee, and so diagnostic code 5256 is not applicable. Diagnostic code 5263 is also not for application because the evidence does not indicate that the Veteran has genu recurvatum. The Veteran has not argued the contrary. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a compensable initial rating for residuals of a fracture to the right fibula, prior to September 23, 2011, is denied. Entitlement to an initial rating in excess of 10 percent, from September 23, 2011, for painful motion of the right knee is denied. Entitlement to an initial rating of 10 percent, but no higher, from September 23, 2011, for right knee recurrent subluxation or lateral instability is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs