Citation Nr: 1756583 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-17 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right fibula stress fracture. 2. Entitlement to a disability rating in excess of 10 percent for left fibula stress fracture, mild old injury to the axons of the left peroneal nerve. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to December 1985 and from May 1986 to May 1991. These matters are on appeal from a February 2011 rating decision of the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) at the RO in August 2011 and before the undersigned Veterans Law Judge in November 2012. A transcript of each hearing is of record. During the pendency of the appeal, the Veteran's bilateral noncompensable ratings were increased to 10 percent, effective from November 30, 2010 (the date of claim). See January 2012 Rating Decision. The Veteran continued his appeal. AB v. Brown, 6 Vet. App. 35 (1993). This matter was most recently remanded by the Board in January 2017. FINDINGS OF FACT 1. The Veteran's service-connected right fibula fracture is primarily manifested by painful movement, but does not impact the ankle, result in loose motion requiring a brace, or more than slightly impair the knee. 2. The Veteran's left leg nerve disability resulted in moderate incomplete paralysis of the external popliteal nerve, but has not been shown to be severe or to ever result in complete paralysis. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for right fibula stress fracture are not met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.14, 4.71a, Diagnostic Code (DC) 5262 (2017). 2. The criteria for a 20 percent evaluation, but no higher, for left fibula stress fracture, mild old injury to the axons of the left peroneal nerve have been met. 38 U.S.C. § 1155 (2002); 38 C.F.R. § 4.1, 4.2, 4.7, 4.124a, DC 8599-8521 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Since the January 2017 Remand, 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). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2002); 38 C.F.R. Part 4 (2017). Separate DC identify the various disabilities. 38 C.F.R. Part 4 (2017). When there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a 10 percent rating, effective November 30, 2010 under DC 8599-8521. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and "99." 38 C.F.R. § 4.27. Therefore, in this instance, the Veteran's left fibula stress fracture, mild old injury to the axons of the left peroneal nerve is rated as analogous to paralysis of the external popliteal nerve (common peroneal). See 38 C.F.R. § 4.124a, Diagnostic Code 8521. The Board finds these diagnostic codes were the most closely analogous to the Veteran's condition as the record is negative for any other form of nerve impairment. Under Diagnostic Code 8521, a 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, and a 30 rating evaluation is assigned for severe incomplete paralysis. Comparatively, a 40 percent evaluation is assigned for complete paralysis manifested by: foot drop and slight droop of the first phalanges of all toes, the inability to dorsiflex the foot, and lost extension (dorsal flexion) of proximal phalanges of toes; lost abduction of the foot, weakened adduction; anesthesia covering the entire dorsum of the foot and toes. See id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Veteran is also in receipt of a 10 percent rating, effective November 30, 2010 under DC 5262. DC 5262 provides a 10 percent disability rating when there is malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is available when there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum rating of 40 percent is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Descriptive words such as "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The Board notes the Veteran also has separate 10 percent ratings under 5260 for limitation of flexion of his service-connected right knee sprain and for patellar tendonitis, degenerative changes of the left knee. By way of reference to severity, a 20 percent rating requires flexion limited to 30 degrees. Correspondingly, a compensable rating under DC 5261, for limitation of extension, requires extension limited to 10 degrees. According to the rating schedule, flexion of the knee to 140 degrees is considered full flexion and extension to 0 degrees is considered full extension. See 38 C.F.R. § 4.71, Plate II. That said, included within 38 C.F.R. § 4.71a are additional DCs that evaluate impairment resulting from service connected knee, ankle, and leg disorders, including DC 5003 (degenerative arthritis), DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), and DC 5263 (genu recurvatum), DC 5270 (ankylosis of the ankle), and DC 5271 (limited motion of the ankle). However, the below evidence is negative for information sufficient to establish entitlement to separate or higher ratings under these DC. Factual Background On February 2011 VA examination, the Veteran report bilateral discomfort when walking on uneven ground and traversing stairs or inclines. He reported no functional limitations associated with standing or walking on level ground. He denied taking specific medications for his symptoms or using wraps or braces or other assistive devices. Instead he used rest and activity limitation to control his symptoms. He reported flare-ups occurred with prolonged walking on uneven ground or going up inclines. Flares lasted between hours and a full day. Flares were noted by the examiner to be mild in severity. In addition to flares, he reported persistent achiness, but denied swelling or redness. He denied a history of hospitalization or surgery or periods of incapacitation. The report was also negative for bone neoplasm, osteomyelitis, inflammation, fracture site motion, fever, general debility, leg shortening, bone abnormality, joint abnormality, or active infection. Physical examination revealed that the weight-bearing joint was affected, but he maintained normal gait. There was no evidence in the feet of abnormal weight bearing, no functional limitation on standing or walking, no evidence of genu recurvatum, no constitutional signs of bone disease, and no malunion of the OS CALCI or astragalus. Knee examination revealed normal extension to 0 bilaterally, flexion was 0 to 130 bilaterally. Diagnostic testing revealed old healed bilateral proximal fibular diaphysis osseous joint or soft tissue abnormalities. No acute fractures were identified. Impression was old healed bilateral proximal fibula diaphysis fractures. At the time of examination, the Veteran reported quitting his former position as a conductor due to leg/knee problems. However, he clarified that he had not lost time from work due to his leg disabilities and reported that his leg/knee problems did not preclude him from performing occupational duties. A March 2011 treatment medical record from private physician, Dr. J. S., M.D., reflects increased bilateral patellar knee pain and pain down the side of the ankles. On physical examination, the Veteran's lower extremities were noted to have good stability with no point tenderness and symmetrical reflexes. Diagnosis was posttraumatic bilateral leg and knee pain. Thereafter in August 2011 correspondence, Dr. S. reasserted that in recent years the Veteran had experienced increasing pain radiating into the lower extremities proximate to his fibular fractures. On August 2011 DRO hearing, the Veteran testified to experiencing decreased mobility, pain, "twitching," and numbness bilaterally. In October 2011 correspondence, another physician Dr. B. F., M. D., confirmed the Veteran's reported increasing leg pain and paresthesias down the lateral aspect of his lower leg and left peroneal nerve. Also in October 2011, the Veteran underwent EMG and nerve conducting testing at the West Dodge Neurologic Clinic. The Veteran reported constant numbness and sometimes itching in the lateral aspect of the left leg to the dorsum of the left foot and sometimes a throbbing sensation on the dorsum of the left great toe. He also reported at times feeling a twitching sensation in his leg at night. Physical examination revealed hypesthesia of the anterolateral aspects of the left leg to the dorsum of the left foot and dorsum of the left great toe. Strength and reflexes were normal in both lower limbs. The Veteran had a positive Tinel's sign over the left peroneal nerve at the head of the left fibula which sent shooting sensations distally to the lateral aspect of the left leg. The results revealed evidence of mild old injury to the axons of the left peroneal nerve, consistent with injury in the proximal leg. His EMG and nerve conduction testing in the left lower extremity was deemed otherwise normal. There was also no electrical evidence of any other injuries in the left lower extremity peripheral nerve. There was no mention of right nerve impairment. At his November 2012 Board hearing, the Veteran reported an itching and aching sensation as well as constant numbness and tingling in his left leg. He reported pain bilaterally and a difficulty walking on uneven surfaces and stairs. He reported experiencing "twitching" and or pain in his left leg that at times woke him up from sleep and required movement to lessen the sensation. He also noted walking with a limp on his left side due to his nerve conditions. He reported being able to walk approximately a block, but preferring not to because of pain. On January 2015 VA examination, the Veteran's diagnosis was "prox fibular stress fx's many yrs ago." Extension was 110 to 0 degrees on the left knee and 110 to 5 degrees on the right knee. Flexion was 0 to 110 on the left knee and 5 to 110 on the right knee. These results remained unchanged after repetition. Pain was noted on examination to cause limited extension and flexion. Examination was negative for localized tenderness or pain on palpation or weight-bearing. The examiner noted that the Veteran's stress fracture did not affect the range of motion of his ankle, but did cause reported knee pain. The Veteran denied ankle complaints. There was no nonunion, loose motion, or malunion associated with the stress fracture. There was also no marked knee or ankle disability. Nerve examination revealed left peroneal nerve neuritis. The Veteran denied right leg nerve symptomatology and none was found on examination. With regard to the left leg, he reported numbness from the left big toe to the leg. Symptoms attributable to the peripheral nerve condition were moderate numbness and intermittent pain. He denied constant pain or paresthesias and/or dysesthesias. Muscle strength was 5/5 with no evidence of muscle atrophy. Reflex and sensory examination were normal. The only nerve impairment was to the superficial peroneal nerve, which had moderate incomplete paralysis. No assistive devices were used. Functional impairment was not equivalent to that of amputation. EMG studies revealed an abnormal left lower extremity due to an impaired left peroneal nerve. The examiner indicated that the EMG was indicative of "mild-moderate neuritis." However, the examiner opined that the leg conditions did not impact the Veteran's employment. The Veteran also reported that his leg conditions did not interfere with his ability to work as he had a "factory job/worked with computers." On April 2015 private knee examination, the Veteran reported difficulty walking on uneven surfaces and walking upstairs due to the pain. See Westroads Rheumatology Report. He reported being able to walk about a mile to a mile and a half on flat ground. He reported stiffness after sitting for a short period of time. He denied pain on resting, but reported periodic swelling. To combat his symptomatology, he reported taking three regular strength aspirin one to two times per day. He also occasionally used ibuprofen 200. There was no indication of difficulty with performing the activities of daily living. On March 2017 VA examination, the Veteran reported bilateral knee pains, numbness, and tingling in the left lower leg/foot. He again denied right extremity neurologic symptomatology and reported that he never had such symptoms. Extension was 95 to 0 degrees right and 90 to 0 left with no change following repetition. Flexion was 0 to 95 degrees right and 0 to 90 left with no change following repetition. Pain was exhibited only on flexion. There was pain on weight-bearing and mild pain on passive motion but neither were shown to result in any additional functional loss. There was no evidence of pain on non-weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of crepitus. Muscle strength was 5/5. He was negative for joint instability and ankylosis. The examiner noted that the Veteran's stress fracture did not affect the range of motion of his ankle, but did cause reported knee pain. No assistive devices were used. Functional impairment was not equivalent to that of amputation. At the time of examination he was employed. The examiner could find no evidence of true malunion of the fibula and there was no indication of a diagnosis of such. After considering the record, the examiner classified the Veteran's nerve impairment as "mild-moderate." The remaining clinical and lay evidence of record is duplicative of the aforementioned. Analysis Following careful consideration of the record, the Board finds that a rating in excess of 10 percent for a right fibula stress fracture under DC 5262 is not warranted for any portion of the period on appeal. As reflected by physicians throughout the appeal, the Veteran's current disability is not manifested by malunion or nonunion, instead his original fracture is considered well-healed. The record is also negative for symptomatology equivalent to a finding of malunion or nonunion. Rather, the record is silent for loose motion and there is no indication that his fibula impairment has caused any impairment of his ankle. He has also consistently denied such impairment. Correspondingly, the record does not reflect moderate or marked knee impairment. To that extent, the Veteran does not require use of assistive devices of any kind, specifically not a brace. In addition, although somewhat decreased, his ranges of motion are not indicative of moderate/marked symptomatology as they are not even severe enough to warrant above a 10 percent rating under DC 5260 or even a compensable rating under DC 5261. That said, beyond pain, discomfort, and somewhat decreased limitation of motion the Veteran has not asserted, and the record does not support, any other symptomatology which might warrant a higher rating. The Board acknowledges that the Veteran's testimony on Board and DRO hearing indicated that he suffered from some neurologic symptomatology in his right leg. However, the Veteran subsequently denied these symptoms as ever being present. Moreover, the competent clinical and examination evidence of record is negative for an indication of neurologic impairment associated with the right fibula. Thus, his previous statements are not considered probative evidence. In light of the aforementioned, the Board finds that a rating in excess of 10 percent is not warranted. However, the Board finds that a rating of 20 percent, but no higher, is warranted for the entire period on appeal under DC 8599-8521 for the Veteran's left fibula disability. In consideration of the Veteran's lay assertions, examination results, and the clinical evidence of record, a VA examiner determined that the Veteran's peroneal impairments are equivalent to "mild-moderate" in severity. See November 2012 and March 2017 VA Examination Reports. Such a finding places the Veteran between a 10 and 20 percent rating for mild and moderate symptomatology. Thus, in resolving all doubt in his favor, the Board finds that a 20 percent rating is warranted as treatment medical records from the start of the appeal reflect the Veteran's reports of constant numbness, occasional twitching, itching, and pain. 38 C.F.R. § 4.7 (2017). That said, a rating in excess of 20 percent is not warranted for any period on appeal, as the record does not show, nor has any physician found, that the Veteran's disability is severe in nature. The Veteran's mobility although decreased has not been precluded as a result of his disability. Further, he has not needed the aid of assistive devices or been unable to maneuver his lower extremities. There has never been a finding of complete paralysis, to include foot drop and slight droop of first phalanges of all toes, lack of dorsiflexion of the foot or extension of the toes or abduction of foot, or adduction weakened anesthesia covering the entire dorsum of foot and toes. As such a rating in excess of 20 percent is not warranted. The record also does not indicate that the Veteran suffers from impairment of any other nerve such as to warrant consideration of other DCs. The Board emphasizes that it has considered the Veteran's reports of functional limitations and symptomology, to include pain and numbness. However, the objective evidence does not support a finding that the Veteran's service-connected disabilities have been associated with such additional functional limitation as to warrant increased compensation pursuant to the provisions of 38 C.F.R. § 4.40, 4.45, or the holding in DeLuca. To that extent, the Veteran's reported symptomology was directly incorporated with in the decision to grant a 20 percent rating and maintain his 10 percent rating. The Veteran is competent to report symptoms of his fibula disabilities. See 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 also credible in his reports of symptoms and their effect on his activities. However, he is not competent to identify a specific level of disability of his disabilities according to the appropriate DC. Such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities has been provided by medical professionals who examined him and considered the entirety of the claims file. The examination reports, in conjunction with the clinical evidence of record, should be accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Lastly, consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson, 12 Vet. App. 119 (1999). 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, 369-70 (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 an evaluation in excess of 10 percent for a right fibula stress fracture is denied. Entitlement to an initial 20 percent disability rating, but no higher, for left fibula stress fracture, mild old injury to the axons of the left peroneal nerve is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs