Citation Nr: 1756726 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-43 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for right distal tibia fracture, status-post closed reduction. 2. Entitlement to an evaluation in excess of 20 percent for left distal tibia fracture, status-post open reduction. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to November 30, 2016. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Marcus J. Colicelli, Associate Counsel INTRODUCTION The Veteran had active service from February 1980 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was provided with a hearing on May 2017 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total rating based on individual unemployability (TDIU) claim is part of an increased rating claim when such claim is raised by the record. A Rice TDIU claim is limited to whether the Veteran is unemployable due to the service-connected disabilities on appeal-in this case, the Veteran's service connected tibia fracture disabilities. The Board finds that entitlement to a TDIU prior to November 30, 2016, is currently before it as part of the Veteran's appealed increased rating claims in accordance with Rice. Accordingly, this issue has been added as a caption on the title page. This appeal was last before the Board in August 2017, where it was remanded for further development. The Board finds that there has been substantial compliance with the directives of this latest Remand decision, including the procurement of updated medical treatment records and new VA examinations and opinions for the claimed conditions decided below. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right distal tibia fracture, status-post closed reduction, has been manifested by no more than marked ankle disability, but without nonunion or loose motion, and with no ankylosis of the ankle. 2. Throughout the period on appeal, the Veteran's left distal tibia fracture, status-post closed reduction has been manifested by no more than moderate ankle disability, with no ankylosis of the ankle. 3. Prior to November 30, 2016, the evidence is at least evenly balanced as to whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent disabling for right distal tibia fracture, status-post closed reduction, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5262 (2017). 2. The criteria for a rating in excess of 20 percent disabling for left distal tibia fracture, status-post closed reduction, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5262 (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU prior to November 30, 2016, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating The Veteran is seeking entitlement to an increased evaluation for his service-connected left and right distal tibia fractures, status-post closed reduction (left/right leg disability). At the onset of the increased rating claim in July 2008, the Veteran had been assigned a 10 percent evaluation in each leg since the initial grant of service connection in June 1988. A December 2008 rating decision awarded increases of 30 percent and 20 percent disabling for the right and left legs, respectively, under DC 5262 for the entire period on appeal, but as the Veteran has not indicated satisfaction with these current evaluations, the matters are still before the Board. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21Vet. App. 506 (2007). The Veteran's right and left leg disabilities are rated under 38 C.F.R. § 4.71a, 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 assigned for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is assigned for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is assigned for non-union of the tibia and fibular with loss motion requiring a brace. Id. Normal ranges of ankle motion are 0 to 20 degrees for dorsiflexion and 0 to 45 degrees for plantar flexion. 38 C.F.R. § 4.71, Plate II. Normal ranges of knee motion are 0 degrees of extension to 145 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Facts & Analysis In this case, the evidence includes reports of VA examinations in August 2008, April 2015, and September 2017, as well as sporadic VAMC outpatient treatment records and statements attesting to consistent symptomatology of continuous pain addressed with medication and assistive brace, exacerbated with prolonged walking/standing. See i.e. June 2009 Primary Care note ("patient is new to The Richmond CBOC...he is here to become established with the VA system to obtain treatment and medications. He desires treatment for pain...has hx of ankle injury, bilat, from accident in service; fractured both ankles and has had multiple corrective surgeries...DX bilateral ankle OA...plantar flexion of approximately 25 - 30 degrees"); July 2010 Bilateral Ankle 3 Views ("Prior studies 2006, 2008...current findings are very similar to prior studies...overall ankle deformities more advances on right than left although similar"); November 2014 Rheumatology Consult ("was a paratrooper...in the last one fell and fractured both legs and now has OA in ankles"); April 2015 Orthopedic Surgery consult ("presenting with bilateral ankle pain... had three surgeries on his right ankle which included a flap taken from tissue from his back. He had two surgeries on his left. Has had the hardware removed from his ankles, wears braces which he has had for 5-6 years. They do help but also irritate him after wearing them for even for short periods, pain is worse in the left."); August 2017 Board Hearing transcript ("I try not to be on my feet too much and I do take pain pills, Vicodin, just two at the very most a day...braces which I think I got them 3 or 4 years ago, has helped tremendously.") The Veteran was afforded a VA examination in August 2008. He reported an in-service bilateral leg fracture with surgery. Following discharge, the Veteran had most of those screws and pins removed except for those in the right ankle. He worked in a meat processing factory standing on his feet and had the rest of the screws and pins removed from the right ankle in 1992. In 1994, he worked in a factory standing most of the time which he noticed he had started having increasing pain that he thought was from the prolonged standing. Thereafter, he was promoted to quality assurance monitor at the same job site in which he was not standing for eight hours. This helped eliminate some of the pain. The Veteran reported that he now has increasing pain after two hours of standing and/or prolonged walking and has to rest and stay off his feet to decrease the pain and he takes Advil only on occasion. He described the pain as an ache that can be bilateral right and left from the outside of the foot to the forefoot and around the lateral malleolus and distal tibia/fibula on the left. The pain caused him a feeling of weakness right greater than left and stiffness in both ankles with some swelling in the feet. The Veteran reported heat in the ankles but no redness, and denied instability, locking, dislocation, or use of assistive devices. Physical evaluation revealed no erythema, ecchymosis, or swelling of either leg or ankles. He had a 7 5 x 14 centimeter soft free flap over the medial malleolus of the right ankle and no tenderness of the lower legs, ankles, or feet. Demonstrated range of motion (ROM) was dorsiflexion of 10 degrees bilaterally with stiff left side on passive movement, right plantar flexion of 10 degrees and left plantar flexion of 20 degrees. Repetitive motion testing was the same without any pain, weakness or lack of endurance. The claimant was found disabled by the Social Security Administration (SSA) in a September 2012 decision. In making this determination, the SSA noted the Veteran's bilateral leg trauma, identifying "increasing ankle pain in recent years" with ongoing medication and pain treatment resulting in an inability to walk or stand for prolonged periods. SSA concluded that the claimant has not engaged in substantially gainful employment since January 4, 2011, due to "severe" ankle arthritis coupled with "mild obesity and chronic obstructive pulmonary disorder (COPD)." The Veteran underwent another VA examination for his ankle in April 2015. Bilateral osteoarthritis was noted and the Veteran reported that he is on disability, but works two hours a day with constant pain requiring morphine, ankle braces, and inability to stand or walk in excess of two hours. The Veteran reported flare ups in the form of increased foot pain after prolonged standing. Physical evaluation revealed normal, bilateral ROM of dorsiflexion to 20 degrees and plantar flexion to 45 degrees, without notation of pain. Pain and fatigue were noted on repetitive testing, and bilateral muscle strength for plantar and dorsiflexion were noted to be 4/5 without any ankylosis. The examiner noted occasional use of bilateral ankle brace with surgical flap scar that was not painful. The examiner concluded that the Veteran's level of severity was "moderate" and a progression of his original disability, noting his inability to stand longer than two hours a day due to pain. The Veteran was most recently afforded a VA knee and lower leg examination in September 2017. He reported no flare ups but bilateral, constant distal tibial pain. Physical evaluation revealed normal, bilateral knee ROM of flexion and extension to 140 degrees without pain. No additional functional loss was noted and full muscle strength without ankylosis was identified. No instability was noted, but occasional use of a cane and "constant" use of an assistant brace were identified by the examiner. Based on the above, the Board finds that the preponderance of the evidence reflects that the currently assigned 30 percent and 20 percent ratings for right and left distal tibia fractures (respectively), status-post closed reduction, are accurate reflections of the Veteran's symptomatology for the entire period on appeal. The 2008, 2015, and 2017 VA examiners similarly concluded that the Veteran's bilateral ankles moderately impacted his activities of daily living and impacted his overall functioning, limiting him from prolonged periods of standing and walking and required the use of braces. There were also consistent complaints of slightly worsened symptoms on the right side. VA physical evaluations revealed normal, bilateral knee ROM throughout the period on appeal and normal bilateral ankle ROM in April 2015, an improvement from the slight diminishment of ROM demonstrated upon examination of the bilateral ankles in August 2008. Despite these fluctuations of ROM, the Veteran's complaints of constant pain and inability to walk or stand have remained constant, as adjudged by the SSA in their disability determination. Accordingly, the Board finds that the Veteran's service-connected fractures of the tibia and fibula of the right and left legs were manifested by an overall marked and moderate knee or ankle disability, respectively, under DC 5262. The Board finds that the most probative evidence does not support a finding of marked knee or ankle disability on the left side, nor is there malunion of the tibia and fibula on the right side, which are required for the next higher ratings under DC 5262. The medical evidence showed that the Veteran's left side findings were not as severe as the right side at any point during the period on appeal, nor does the Veteran allege such was the case. Regarding the right side, the Veteran does not contend and the evidence does not demonstrate that he has nonunion of the tibia and fibula with loose motion requiring the use of a brace. The Board has considered other potentially relevant diagnostic codes and finds that ratings in excess of 20 or 30 percent are not warranted under different diagnostic codes. A 10 percent rating is warranted for moderate limitation of motion of an ankle and a 20 percent rating is warranted for marked limitation of motion of an ankle. 38 C.F.R. § 4.71a, DC 5271. Limitation of flexion of the knee warrants a noncompensable rating if flexion is limited to 60 degrees; a 10 percent rating if flexion is limited to 45 degrees; a 20 percent rating if flexion is limited to 30 degrees; and a 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the knee warrants a noncompensable rating if extension is limited to 5 degrees; a 10 percent rating if extension is limited to 10 degrees; a 20 percent rating if extension is limited to 15 degrees; a 30 percent rating if extension is limited to 20 degrees; a 40 percent rating if extension is limited to 30 degrees; and a 50 percent rating if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. As noted above, the Veteran's limitation of motion, bilaterally, was at least to a moderate severity, and would warrant a 10 percent rating separate from his ankles under DC 5271. The Veteran's bilateral knee ROM was normal, from 0 degrees extension to 140 degrees flexion without any knee complaints. Therefore, the Veteran's knees would warrant a noncompensable rating under DC 5260 and 5261. In other words, separate ratings for the knee and ankle (under DC 5271, 5260, and 5261) would not warrant a combined rating greater than 20 percent or 30 percent. Thus, the Board finds that the most advantageous rating criteria are contained in DC 5262, which contemplates his knee and ankle symptoms, and results in the highest rating in each ankle. Therefore, the Board finds that the evidence supports the current 30 percent and 20 percent ratings for right and left distal tibia fractures (respectively), status-post closed reduction, under Diagnostic Code 5262. Other Considerations Lastly, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record with regard to the claims of increased ratings. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 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)." TDIU The Veteran contends that he is unable to work due to his bilateral leg disabilities. See i.e. November 2016 VA Form 21-8940; May 2017 Board Hearing transcript ("I left my...last full time job in [2009]...production line...for about a year and a half...they had to have a chair for me, and I was the only person with a chair on the production line"). In a February 2017 rating decision, the RO granted the Veteran a TDIU, effective November 30, 2016. However, the Veteran has maintained that he was unemployable prior to this date due exclusively to his tibia fracture disabilities. See May 2017 Board Hearing transcript; see also July 2010 VA Form 9 ("My ability to walk or stand has diminished greatly in the last 12 months...I lost my job 6/14/10 after 16 years, it's going to be very hard to find a rewarding job that pays more than minimum wage...most small companies do not even want to bother with disabled workers.") As such, the Board finds that entitlement to a TDIU prior to November 30, 2016, is currently before it as part of the Veteran's appealed increased rating claims in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). In this case, throughout the period on appeal the Veteran has been service-connected for right and left distal tibia fracture status-post closed reduction surgery, each rated separately as 30 percent and 20 percent, respectively; surgical flap scar of the right medial ankle, rated as 20 percent disabling; and a noncompensable rating for donor site scar of the left posterior shoulder. Here, the Veteran's disabilities affect his orthopedic system, a single body system. Thus, the Veteran has had one disability rated as 60 percent disabling for TDIU purposes, and met the minimum schedular requirements for TDIU benefits prior November 30, 2016. 38 C.F.R. § 4.16(a)(3). During his May 2017 hearing, the Veteran testified that bilateral leg disabilities have significantly affected his specific type of work, namely standing in an automotive assembly line. He reported that as a result of leg problems, he cannot stand or walk long distances, requiring the use of braces, a cane, and a chair, to the chagrin of fellow production line associates. He indicated that he continues marginal, part-time employment since the end of his full-time career in 2009. Throughout the period on appeal, the Veteran has consistently stated that his increasing ankle/leg difficulties have rendered him unable to cope with the demands of the production line, providing a favorable SSA disability determination letter which identifies that he has been disabled due to his bilateral ankle/leg conditions with COPD and obesity since January 4, 2011. Although the medical opinions of record determined that the Veteran's service-connected disabilities do not cause functional impairment that would make it difficult or impossible for him to work, "the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Regardless, the VA examination opinions of record prior to November 30, 2016, are consistent in their analysis that the Veteran's bilateral leg disabilities have an impact on his employability, noting his problems with prolonged standing and walking in a profession requiring such physical feats on a daily basis. Given the significant impairment caused by the Veteran's service connected disabilities, as indicated by the lay and medical evidence prior to November 30 2016, see id. at 1354 ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"), and his limited education and occupational experience in a profession requiring prolonged standing, the evidence is at least evenly balanced as to whether his service-connected disabilities preclude him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU prior to November 30, 2016, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to an evaluation in excess of 30 percent for right distal tibia fracture, status-post closed reduction, is denied. Entitlement to an evaluation in excess of 20 percent for left distal tibia fracture, status-post closed reduction, is denied. Entitlement to TDIU prior to November 30, 2016, is granted, subject to the laws governing the award of monetary benefits. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs