Citation Nr: 1756826 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-12 860 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an evaluation in excess of 10 percent left tibia/fibula fracture, residuals, with shortening of the left lower extremity and left ankle degenerative changes (left leg disability) prior to August 5, 2015, and 20 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to August 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana which granted service connection for left leg disability and assigned a ten percent disability rating. The Veteran filed his notice of disagreement in November 2012, was issued a statement of the case in December 2013, and in February 2014 perfected his appeal to the Board. In September 2015, the Agency of Original Jurisdiction (AOJ) issued a rating decision which granted a rating increase for the Veteran's left leg disability, evaluating it as 20 percent disabling effective August 5, 2015. As this constitutes a partial grant of the benefits sought on appeal, this issue remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. FINDINGS OF FACT The Veteran's left leg disability has resulted in malunion of the tibia and fibula with marked knee or ankle disability from November 29, 2010, forward. CONCLUSIONS OF LAW The criteria for a 30 percent rating, but no higher, have been met for the Veteran's left leg disability for the period from November 29, 2010, forward. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC), 5262 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection was established for the Veteran's left leg disability, which is the result of a July 1981 in-service motorcycle accident. He has asserted that he suffers from pain and deformity of the left leg, weekly flare ups, and stated that he requires use of both a brace and a cane to be ambulatory. The Veteran testified during the hearing before the undersigned that it hurts when he walks, and that he has limited radius movement in his foot because of his ankle. He also stated that the pain impacts his sleep and driving. When asked if there was anything different in his disability from the time service connection was established at 10 percent and when the 20 percent rating was assigned, the Veteran testified "[n]o, just more pain, just more pain, your honor, that's it. There's a little bit less movement, but that's about it." Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Veteran's left leg disability has been evaluated as ten percent disabling for the period prior to August 5, 2015, and 20 percent disabling thereafter under 38 C.F.R. § 4.71a, DC 5262, for impairment of the tibia and fibula. Under DC 5262, a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; and a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Under DC 5271, for limitation of motion of the ankle, a ten percent rating is assigned for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. Normal dorsiflexion of the ankle is from zero to 20 degrees. Normal plantar flexion of the ankle is from zero to 45 degrees. The Board observes that the words "slight," "moderate," "severe," and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2017). It should also be noted that use of terminology such as "slight" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2017). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Codes 5260 and 5261 provide for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. Additionally, 38 C.F.R. § 4.71a, DC 5275 (2017), provides a ten percent rating for shortening of the lower extremity between 1 1/4 and 2 inches (3.2 to 5.1 cm); a 20 percent rating for shortening between 2 to 2 1/2 inches (5.1 to 6.4 cm); and a 30 percent rating for shortening between 2 1/2 to 3 inches (6.4 to 7.6 cm). Given the nature of the Veteran's disability, the most appropriate criteria for rating his disability is that found at DC 5262. Although the examination reports in this case do not indicate if the Veteran's disability was tested in passive rather than active motion and the examiner in 2015 stated that she could not comment on increased functional loss during flare-up or repeated use, such discrepancies are not of consequence. This is because the Board is assigning the maximum scheduler rating under the appropriate criteria and has accepted the Veteran's description of his functional loss during flare-up in so doing. In August 2012, the Veteran was afforded a VA examination wherein the examiner noted that the Veteran suffered from pain and deformity in the left lower leg, required use of a cane and a brace, and endured severe weekly flare ups lasting three to seven days. The Veteran stated that when he is suffering from pain he is unable to do anything, and precipitating factors include increased or unusual physical activities and inclement weather. He also stated that elevation and rest help alleviate the pain. The examiner noted: Veteran's left leg measured 33 inches while his right leg measured 34 inches; bone abnormality on left tibia and fibula; loss of bone or part of bone; malunion at anterior tibia and fibula area approximately 33 cm distal from knee. The examiner also noted evidence of abnormal weight bearing and an unusual shoe wear pattern. The Veteran reported that he was unable to stand for more than a few minutes, and that he is able to walk more than 1/4 mile, but less than one mile. There were no acute fractures and the joint spaces and the knee were preserved with no significant degenerative changes. The Veteran was afforded an additional VA examination in August 2015 for his left leg and ankle. The Veteran reported suffering left leg length discrepancy, flare ups of his left knee and lower leg, and stated that he has daily left knee pain which he described as moderate to severe. He also reported that his knee "popped" out of joint approximately one time a week, and he had difficulty standing long periods of time and walking long distances. The examination report showed that the Veteran's left knee range of motion was abnormal with flexion of zero to 115 degrees; and extension 115 to zero degrees, but the examiner noted range of motion did not contribute to functional loss. There was evidence of pain on rest; on weight bearing; and evidence of localized tenderness or pain on palpation of joint or associated soft tissue, but no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was additional functional loss or range of motion after three repetitions due to pain. After three repetitions the examiner noted flexion of zero to 110 degrees; and extension 110 to zero degrees. The Veteran was not examined immediately after repetitive use over time so the examiner was unable to opine without mere speculation if pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time. Additionally, the examination was not conducted during a flare up, but the examination was determined to have been neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare ups. The examiner did note that she was unable to say without speculation if pain, weakness, fatigability, or incoordination significantly limits functional ability with flare up as the examination was not performed during a flare up. The examination report showed normal muscle strength in the left knee; no ankylosis; no recurrent subluxation; and no lateral or joint instability. The Veteran did have leg length discrepancy with his right leg measuring 100 cm and left leg measuring 96.25 cm. There was no degenerative or traumatic arthritis documented and no acute fractures or dislocations. Imaging studies revealed: joint spaces and the knee were preserved with no significant degenerative change; vascular calcification; and soft tissues unremarkable. The Veteran's August 2015 ankle examination report noted left side degenerative arthritis which was diagnosed in 2012. The Veteran reported suffering daily flare ups which caused moderate to severe pain. The examiner noted left ankle abnormal range of motion with dorsiflexion of zero to ten degrees and plantar flexion of zero to 35 degrees. Pain was noted on rest, dorsiflexion and plantar flexion. There was evidence of pain on weight bearing, evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, but no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, but there was additional loss of function or range of motion after three repetitions due to pain. The Veteran's left ankle range of motion after three repetitions were: dorsiflexion of zero to five degrees; plantar flexion of zero to 25 degrees. The Veteran was not examined immediately after repetitive use over time, and the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that she was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time as the examination was not performed after a repeated use over a period of time. The examiner also noted that while the examination was not conducted during a flare up, it was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare ups. The examiner was unable to say without mere speculation if pain, weakness, fatigability or incoordination significantly limited functional ability with a flare up as the examination was not performed during a flare up. The examiner found that the Veteran's left ankle displayed a reduction in muscle strength due entirely to his condition, no muscle atrophy or anklyosis, and no ankle instability or dislocation. Imaging studies documented degenerative or traumatic arthritis of the ankle. The Board finds that for the entire period on appeal, back to the date of award of service connecdtion, the Veteran's left leg disability most closely approximates a scheduler rating evaluation of 30 percent disabling under DC 5262. Given the nature of his disability, residuals of a fracture approximately 33 cm distal from knee, the most appropriate criteria for rating the disability are those found at DC 5262. The Veteran's reports of the frequency, duration, and severity of his flare-ups together with the decreased motion on just a few repetitions leads to the conclusion that he has malunion with marked knee or ankle disability. Also, given his testimony before the undersigned and the fact that he has reported flare-ups over the course of the claim and appeal, leads the Board to a conclusion that his disability has approximated the criteria for the 30 percent rating since service connection was established. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of moderate to severe pain, flare ups, and functionability limitations are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). In conclusion, the Board finds that the Veteran's disability warrants a 30 percent rating under the most appropriate criteria -the highest rating under that criteria - for from the date of service connection, November 29, 2010, forward. There is no reasonable doubt to be resolved in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. ORDER A disability rating of 30 percent is granted from November 29, 2010, forward, for the Veteran's left leg disability, subject to the regulations governing the disbursement of monetary benefits. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs