Citation Nr: 1753877 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 11-00 085A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a compensable initial evaluation for left tibial fracture, status post open reduction internal fixation (ORIF) with retained hardware. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Original jurisdiction of the claim now resides with the RO in Oakland, California. In March 2015, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the proceeding is associated with the electronic claims file. In August 2015 and October 2016, the Board remanded the claim for further development. It is now returned to the Board for further appellate consideration. FINDING OF FACT The probative evidence is against a finding that the Veteran has malunion or nonunion of the left tibia or fibula; the Veteran is already in receipt of a rating for left knee arthritis that compensates for pain and limitation in that area. CONCLUSION OF LAW The criteria for a compensable initial evaluation for left tibial fracture, status post ORIF with retained hardware, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.71a, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any 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). The Board has reviewed all the evidence in the record. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left tibial fracture is assigned a noncompensable rating under Diagnostic Code (DC) 5262. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is warranted for malunion with moderate knee or ankle disability; a 30 percent rating is warranted for malunion with marked knee or ankle disability; and a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. Turning to the evidence, at a July 2009 VA examination, the Veteran stated he had constant pain in the vicinity of the left knee and proximal tibia. X-ray showed extensive postsurgical changes including retained fixation plates and associated cancellous screws without evidence of internal loosening, migration or fracture. No fracture or dislocation of the tibia was seen. Malunion or nonunion of the tibia was not identified. In the December 2009 rating decision, service connection was granted for status post left tibial fracture with retained hardware and for left knee arthritis. In February 2010, the Veteran had another x-ray of his left knee and proximal tibia. No acute fracture or focal osseous destruction was present. It was noted alignment was maintained, although there was a small amount of lucency between the lateral plate and the bone. This was noted to measure less than 2 millimeters. Degenerative joint disease was present in the knee. In his January 2011 Form 9, the Veteran indicated that the in-service motorcycle accident that caused his tibial fracture was life changing and catastrophic and he now had to use a cane when walking for exercise. He indicated moderate to severe pain daily in his knee and difficulty squatting or kneeling down, standing or walking for more than one hour. He indicated being unable to run. He stated that the injury was his greatest challenge in reentering civilian life and he felt it deserved a considerable disability rating from VA. At a June 2011 VA examination, the Veteran continued to complain of pain and discomfort in his left knee. There was no indication of malunion or nonunion of the tibia. In April 2012, the Veteran underwent another VA examination. He stated his left knee started to hurt after walking for about a quarter to half a mile. He complained of stiffness and pain in the knee, especially in the morning. Upon examination it was noted the Veteran did not have "shin splints", stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. In March 2015, the Veteran testified at a hearing before the Board. He indicated he wore a knee brace and experienced daily pain in the left knee. In August 2015, the Board remanded the claim for a new examination. In November 2015, the examiner identified osteoarthritis in the left knee. The examiner noted the Veteran had never had recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome or any other tibia and/or fibular impairment. Orthopedic hardware was present in the tibia proximal to the knee with no fracture lines identified. The patellofemoral joint was noted to be unremarkable in appearance. In a July 2016 Appellate Brief, the Veteran's representative argued that the evidence of record established chronic posttraumatic deformity of the left tibial area with secondary left knee degenerative changes. The representative contended that the evidence demonstrated the Veteran had a marked knee disability and that the disability picture more nearly approximated that of a malunion of the tibia; therefore, entitlement to an increased evaluation should be granted. In October 2016, the Board remanded the claim for an addendum opinion seeking a specific finding regarding the presence or absence of malunion or nonunion of the left tibia. In February 2017, the November 2015 VA examiner reviewed the claims file and determined that no clear evidence of malunion or nonunion of the tibia on the left leg. In an October 2017 Appellate Brief, the Veteran's representative cited to DC 5010 providing that arthritis due to trauma that is substantiated by x-ray findings is to be rated as degenerative arthritis pursuant to DC 5003 based on limitation of motion of the specific joint or joints involved. The representative contended that a 10 percent evaluation was warranted for degenerative changes associated with the left tibia. Based on a careful review of the lay and medical evidence of record, the Board finds that a compensable rating for the Veteran's left tibial fracture, status post ORIF with retained hardware is not warranted. This is because the objective evidence does not support a finding that the Veteran has malunion or nonunion of the tibia which is a requirement under DC 5262 for a compensable rating for impairment of the tibia. X-ray evidence, treatment records and examination reports have not demonstrated tibial impairment in the Veteran's left tibia that can be considered compensable. In regard to a rating based on the presence of arthritis or simply to compensate for symptomatology in the left knee, the Board finds that the separate 10 percent rating the Veteran is receiving for left knee arthritis takes into account limited flexion in the knee as well as pain on motion caused by arthritis in that area. As the Veteran is already receiving a compensable rating based on limitation of motion and pain in the left knee, a rating based on degenerative changes associated with the proximal left tibia is not appropriate as such would constitute pyramiding. 38 C.F.R. §§ 4.14, 4.59, 4.71a, Diagnostic Code 5003 (2017). The Board recognizes the Veteran's belief that he should be granted a compensable rating on account of the severity of his in-service motorcycle accident and that he still experiences pain and discomfort in his left leg. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012). Here, malunion or nonunion of the tibia has not been demonstrated and the Veteran is compensated for arthritis and the limitation it causes in the rating assigned for his service-connected left knee arthritis. Notably, the rating for left knee arthritis is not currently on appeal and the Board does not have jurisdiction to consider it at this time. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. ORDER A compensable initial evaluation for left tibial fracture, status post ORIF with retained hardware is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs