Citation Nr: 1803774 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-57 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 20 percent for the residuals of an open fracture of the right tibia and fibula. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1987 to April 1992; from November 2001 to June 2002; and from April 2007 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board in July 2017 when the claim for entitlement to an earlier effective date for the grant of service connection for post-traumatic stress disorder (PTSD) was denied. The claim for an increased rating for the residuals of an open fracture of the right tibia and fibula was remanded for additional development. It has been returned for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's residuals of an open fracture of the right tibia and fibula are productive of marked impairment on flare-ups. CONCLUSION OF LAW The criteria for entitlement to a 30 percent rating for the residuals of an open fracture of the right tibia and fibula have been met; the criteria for a rating in excess of 30 percent have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.2, 4.7, 4.14, 4.40, 4.45, 4.71a, Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify/Assist In October 2016, the Veteran used a VA Form 21-526EZ to initiate his claim. This form includes the necessary VCAA notice as part of the application. Regarding the duty to assist, VA treatment records have been obtained, and the Veteran has not identified any outstanding private medical treatment. The Veteran has been provided two VA examinations of his disability, and the issue has been remanded in order to provide the Veteran an updated examination to better assess his disability picture. The Veteran did not request a hearing. As such, the Board will proceed with adjudication of the claim. Increased Rating The Veteran contends that the 20 percent rating assigned to his residuals of an open fracture of the right tibia and fibula does not reflect the impairment that results from this disability. He says that he walks with a limp and states that as he gets older, the limp becomes worse and he is not able to walk as far as before. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10 . If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The record shows that entitlement to service connection for the residuals of an open fracture of the right tibia and fibula was granted in a March 2008 rating decision. A 10 percent evaluation was assigned for this disability under the rating criteria for impairment of the tibia and fibula. While the 10 percent evaluation was confirmed in a June 2009 rating decision, this decision also assigned a separate 10 percent rating for degenerative arthritis of the right ankle as secondary to the residuals of the tibia and fibula fracture. The evaluation was increased to the current 20 percent in a December 2013 rating decision. The rating code for impairment of the tibia and fibula states that for nonunion, with loose motion requiring a brace, a 40 percent rating is warranted. For malunion with marked knee or ankle disability, a 30 percent rating is assigned. Moderate knee or ankle disability receives a 20 percent rating, and slight knee or ankle disability is evaluated as 10 percent disabling. 38 C.F.R. § 4.71a, Code 5262. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Since filing for an increase, the Veteran underwent a VA examination of his disability in October 2016. Pain in the right knee since his lower leg fracture and the multiple operations that ensued was reported. He described right knee pain when walking that came up from his ankle. He reported flare-ups of increased pain in cold weather. The Veteran described his impairment as having pain and being unable to walk fast. On examination of the right knee, range of motion was from zero to 100 degrees. There was evidence of pain on weight bearing, but no objective evidence of pain on palpation or crepitus. Passive range of motion also showed evidence of pain. The Veteran was able to perform repetitive use testing, which did not result in additional functional loss or reduction in range of motion. There was normal range of motion of the left knee. The Veteran described increased pain with repeated use over time or flare-ups but was unable to describe additional functional loss in terms of range of motion. Muscle strength was 5/5. There was no history of recurrent subluxation or lateral instability, and the right knee was stable on testing. The Veteran did not have a disability of the semilunar cartilage. An X-ray of the right knee was unremarkable. The Veteran was employed at a desk job, but had to move around frequently due to right knee stiffness. 10/25/16 C&P Exam, p. 1. The most recent VA examination was conducted in August 2017. The claims folder was reviewed by the examiner. The Veteran's disability dated to a 2008 in-service ATV injury. There had been an infection, and he had undergone seven surgeries with the final one being done six years ago. The Veteran said that his leg would swell in hot weather. He reported flare-ups, which he described as increased pain so that he was unable to walk. The Veteran was unable to do prolonged standing, and was able to walk only slowly and for short distances. Range of motion of the right knee was from zero to 80 degrees, with pain on both flexion and extension. There was evidence of pain on weight bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing, but this did not result in any additional loss of function or range of motion. Pain was said to significantly limit functional ability with repeated use over time or on flare-ups. Muscle testing was 5/5. There was no ankylosis, recurrent subluxation, or joint instability shown on testing. The Veteran did not have a condition of the semilunar cartilage. Passive range of motion testing showed objective evidence of pain, as did non-weight bearing testing. The left knee had normal range of motion. Assistive devices were not used by the Veteran. Imaging studies were performed, but these did not document arthritis. The examiner opined that the Veteran's disability was severe, in that when he experienced flare-ups there would be swelling of the lower leg and he was unable to stand or walk. 8/25/17 C&P Exam, p. 1. The Board finds the evidence supports a 30 percent rating for the Veteran's right leg disability. Although the evidence does not show continuous symptoms that would merit such a rating, the Board must consider the level of impairment during flare-ups. The August 2017 examiner opined that the Veteran's disability was severe in that during flare-ups his leg would swell and prevent him from standing or walking. The Board agrees with the Veteran's representative's contention in the January 2018 brief that, in this case, the term "severe" equates to the term "marked" that is used in the rating criteria. Marked impairment warrants an increase to a 30 percent rating. 38 C.F.R. § 4.71a, Code 5262. The Board finds that this increase is also based, in part, on evidence of pain on weight bearing and evidence of crepitus. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704, at *27 n.8 (Nov. 29, 2017) ("Similarly, insofar as popping and grinding may be consistent with crepitus, those manifestations are contemplated by § 4.59"). The Board has considered entitlement to a rating in excess of 30 percent, but this is not shown. There is no evidence of malunion of the Veteran's fracture with loose motion that requires a brace. 38 C.F.R. § 4.71a, Code 5262. An award of a rating in excess of 30 percent under other rating criteria has been considered, but is not supported by the evidence. The examinations show that the Veteran does not have ankylosis of the knee. 38 C.F.R. § 4.71a, Code 5256. They also show that he does not have subluxation or instability, and the rating code for these impairments does not provide for a rating higher than 30 percent. 38 C.F.R. § 4.71a, Code 5257. The rating criteria for disabilities of the semilunar cartilage do not provide for a rating higher than 20 percent. 38 C.F.R. § 4.71a, Code 5258, 5259. The rating code for limitation of flexion does not include a rating higher than 30 percent. 38 C.F.R. § 4.71a, Code 5260. The rating code for limitation of extension does include ratings of up to 50 percent. However, the evidence does not show that the Veteran had limitation of extension on either examination even with consideration of the effects of pain, weakness, incoordination and fatigability with repetitive use testing. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5261. Finally, the rating criteria for genu recurvatum only go to 10 percent. 38 C.F.R. § 4.71a, Code 5263. The ankle symptomatology are not for consideration, as the Veteran has been awarded a separate rating for the ankle based on this symptomatology, and a second award based on these symptoms is prohibited. 38 C.F.R. § 4.14. The Board concludes that a 30 percent rating for the Veteran's residuals of an open fracture of the right tibia and fibula, but no more, is warranted. The benefit of the doubt has been applied, as appropriate. ORDER A 30 percent rating for the residuals of an open fracture of the right tibia and fibula is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs