Citation Nr: 1806182	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  12-16 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an evaluation in excess of 30 percent for left tibia/fibula impairment.


REPRESENTATION

Veteran represented by:	Adam Luck, attorney


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel



INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C.A. § 7107 (a)(2) (West 2014).

The Veteran served on active duty from August 1966 to January 1969. He has been awarded a Purple Heart Medal among his awards and decorations.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Veteran testified at a DRO hearing in October 2011, and a transcript of the hearing is of record. 

In September 2015 and October 2015, the Board remanded the claim for additional development.  

The AOJ issued a rating decision in December 2015, in which it granted, effective December 14, 2015, an increased rating of 30 percent for left distal tibia and fibula impairment.  As this grant did not represent a total grant of benefits sought, the claim was returned to the Board.  

In February 2017, the Board issued a decision granting a 30 percent rating prior to December 14, 2015 but denying the Veteran's claim for an increased rating thereafter.  The Veteran appealed this decision in the United States Court of Appeals for Veterans Claims (Court) and in October 2017, the Court granted a Joint Motion for Partial Remand (JMR) vacating the denial regarding the above issue and remanding it to the Board for additional development. 

The issue of an earlier effective date for a total rating has been raised, but not otherwise developed.  Appellant and his attorney are reminded that claims for benefits are to be raised on forms as provided by the Secretary.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record.


FINDING OF FACT

It is as likely as not, given the guidance of the Court, that the Veteran's left tibia and fibula impairment is productive of functional impairment comparable to nonunion of the tibia and fibula with loose motion, requiring a brace, because the Veteran's disorder significantly impairs his ability to walk, and requires the use of a brace during the entire period on appeal.  


CONCLUSION OF LAW

With resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 40 percent rating for left tibia/fibula impairment are approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5262 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the Veteran, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The claimant has been notified of the need for medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. 

VA has fulfilled its duty to assist. The RO has made reasonable and appropriate efforts to assist the Veteran in obtaining the evidence necessary to substantiate this claim, including requesting information from the Veteran regarding pertinent medical treatment he may have received and obtaining such records, as well as affording him VA examinations during the appeal period. The Veteran was afforded pertinent VA examinations in which the examiners reviewed the claims file, performed examinations of the Veteran, and provided findings and opinions with sufficient detail for the Board to make a decision.  The reports are deemed adequate with respect to the claim. 

This matter was previously before the Board and the Court, at which times it was remanded for additional development.  The AOJ has complied with the remand directives as to the issue herein decided.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Hence, VA has fulfilled its duty to notify and assist the Veteran, and adjudication at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet, App. 384, 394 (1993). The appeal is now ready to be considered on the merits.

Increased ratings claim

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. 
§ 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7.

The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 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. See generally, Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Furthermore, "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. Hart, supra.

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. 

The Veteran is rated under Diagnostic Code 5262 at 30 percent during the entire period on appeal.  This rating is for impairment of the tibia and fibula, secondary to fractures received as a result of a missile injury sustained in Vietnam.  A 30 percent rating contemplates malunion with marked knee or ankle disability.  A 40 percent rating may be assigned where there is nonunion with loose movement requiring a brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262.

A separate 30 percent rating has been assigned for severe muscle damage to the muscle groups involved, and that rating is said to contemplate some knee impairment as well as shortening of the leg.  That matter is not currently on appeal.  Since the muscle damage of the groups involved concerns primarily ankle and foot motion, consideration herein will focus on knee impairment.  The provisions of Code 5262 encompass pain, impairment of motion, and instability.

The record reveals, as noted above, that this issue was previously denied by the Board.  It was appealed to the Court and subject of the aforementioned JMR.  It was determined, in that document, essentially that the "nonunion" noted in 2009 did not have to be "true nonunion" under the Code as was noted by the Board.  It was also indicated that use of the brace should be taken as findings of instability, regardless of other recorded findings concerning stability.  The Board has reviewed and reevaluated this issue mindful of the guidance provided in this case.

The Veteran underwent a VA examination in September 2009.  The examiner noted that he currently had a nonunion of the midshaft fibula fracture; however, he had united his distal tibia fracture.  The Veteran reported aching pain in that area.  

A physical examination revealed a deformity of the left distal tibia with a bow with varus angulation to it and rotational deformity.  There was no pseudoarthrosis and no intraarticular involvement.  There was malunion.  It was nontender and revealed no drainage.  The Veteran reported occasional edema due to the injuries.  He had no painful motion, erythema, or locally increased temperature. His gait was slightly limping in the left lower extremity and he had functional limitations in standing for an hour or walking long distances.  The Veteran had no callosities, ankylosis, joint involvement, or unusual shoe wear pattern.  He did have a two inch leg length discrepancy by measurement from the anterior-superior iliac spinous process to the tip of the medial malleolus compared to the right.  The examiner diagnosed a healed malunion with deformity of the left distal tibial fracture nonunion of the midshaft fibular fracture.  

The Veteran appeared at a hearing before a Decision Review Officer in October 2011.  With regard to his left leg disorder, he testified that he experienced increased edema and severe deep pain with ambulation.  

The Veteran was afforded a VA examination of the leg in October 2011.  The examiner noted diagnoses of open fracture of the left tibia, osteomy left fibula, and malunion left tibia fracture.   By way of medical history, the examiner recounted that the Veteran 

sustained an open fracture of his left tibia from shell fragments from a presumed rocket attack in the RVN.  His surgeons debrided the wounds and casted his leg with windowing in the cast to allow wound management.  His fracture delayed uniting and the left fibula was osteomized to allow closure of the gap between the proximal and distal tibia sections. His fracture eventually united.  He has a varus angulation of the left tibia of -22 degrees with -25 degrees of recurvatum and internal rotation of -30 degrees.

A physical examination showed the Veteran had flexion of the left knee to 100 degrees, with objective evidence of pain at 5 degrees and no limitation of extension.  The Veteran was able to perform repetitive use testing with no additional limitations.  The Veteran denied flare-ups. Functional impairment was the result of decreased range of motion, pain, deformity, and disturbance of locomotion.  Muscle strength testing showed active movement against some resistance.  Joint stability testing was normal and there was no evidence of recurrent patellar subluxation or dislocation.  The Veteran had a leg length discrepancy of two inches on the left leg.  The Veteran's left leg disorder requires constant use of a brace and cane.     

A July 2012 orthopedic treatment record showed the Veteran had tenderness over the medial joint over the knee and pain in his ankle.  The physician recommended an MRI of the left knee to evaluate for possible torn meniscus.  

In a March 2014 treatment record, the Veteran's range of motion of the left knee was within normal limits.  In a December 2014 treatment record, the Veteran's orthopedist stated that the Veteran continued to have pain in the left knee and low back and pain and giving way of the left ankle.  The Veteran has bracing of the back and left knee, and left ankle. 

On examination of the left knee, the Veteran had a positive lying straight leg raise, 1-2 patellar tendon reflex, and 1-2 Achilles deep reflex.  The Veteran had -5 degrees of full extension and 100 degrees of flexion.  He also had crepitation with range of motion on the left knee and mild swelling.  Physical examination of the left ankle showed decreased range of motion and crepitation with range of motion,  

The orthopedist assessed "mechanical short leg of the left lower extremity due to a service related injury of the left tibia. #2 posttraumatic degenerative joint disease of the left knee due to 41. #3 acquired mechanical scoliosis due to #1 - #4 arthropathy of left lower extremity due to #1 and #3. #5 left ankle arthritis and instability due to the mechanical short leg."

The Veteran underwent a VA examination in December 2015.  The Veteran reported swelling below the left knee, especially with prolonged standing.  He denied redness and increased warmth but reported giving way of the left knee and leg.  There was constant pain, particularly in the medial aspect of the knee and tibia.  The Veteran utilizes a knee brace at all time.  His function limitations consist of avoiding lifting and prolonged standing and limited walking more than one block.  

The Veteran's range of motion of the left knee was limited to 20 degrees of extension and 90 degrees of flexion with evidence of pain on weight bearing.  Tenderness in the anserine bursa was noted with no tenderness of the medial or lateral joint lines.  There was also objective evidence of crepitus.  The Veteran was unable to perform repetitive use testing due to excessive pain.  The examiner found the examination to be medically consistent with the Veteran's statements regarding functional loss with repetitive use over time.  Muscle strength testing of the left knee showed 3 out of 5 for forward flexion and 4 out of 5 for extension.  The examiner also found muscle atrophy.  

The Veteran reported a history of slight recurrent subluxation but not lateral instability.  Joint stability testing could not be performed due to limited range of motion and the Veteran's pain level.  The Veteran also reported intermittent left knee swelling.  The examiner further noted that the Veteran has tibial and/or fibular impairment, specifically leg length discrepancy. The Veteran had a left fibula osteotomy in the 1960s, the residual symptoms of which were persistent pain and leg length discrepancy. The Veteran regularly uses a brace and cane for ambulation.  Diagnostic studies showed moderate degenerative joint disease of the left knee.  

The examiner opined that the functional impact of the Veteran's left leg and knee disabilities is that he is limited in standing and walking and avoids squatting and kneeling.  The examiner opined that the Veteran's left knee and leg disorders have a substantial adverse impact on his functional capacity in an occupational environment but do not render him incapable of maintaining substantially gainful employment as a sedentary occupation is medically feasible. 

After reviewing all the pertinent evidence in view of the guidance from the JMR, the Board concludes that it is as likely as not that the impairment of the tibial and fibula more nearly approximates nonunion with loose motion, requiring a brace.  The Board finds that the Veteran's primary symptoms have been pain and functional impairment. He has been prescribed a knee brace since the beginning of the period on appeal. The combination of instability and pain requiring a brace or other assistive device is most closely described by the 40 percent rating under Diagnostic Code 5262.

The Board has also considered whether ratings are warranted for limitation of motion under Diagnostic Codes 5260 or 5261 instead of the currently assigned 40 percent rating. The Veteran may not be assigned separate ratings under both Diagnostic Code 5257 or 5260 or 5261 and Diagnostic Code 5262. Although the September 2009 VA examination did not contain range of motion findings, the October 2011 VA examination showed flexion to 100 degrees and no limitation of extension.  A March 2014 treatment records showed range of motion of the left knee was within normal limits.  Similarly, the December 2015 VA examination showed range of motion from 20 to 90 degrees, which does not warrant a rating in excess of 40 percent.  Therefore, the Veteran is not entitled to higher ratings for limitation of motion.  

With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, supra, the Board finds no basis for further compensation under these principles.  The Veteran has credibly reported symptoms of left knee and leg pain, the necessity of a brace, and limitation on function due to pain.  He has been provided the assigned rating under Diagnostic Code 5262, and no higher ratings are warranted for disabilities of the knee unless ankylosis is shown.  Consequently, with resolution of the doubt in favor of the Veteran, a rating of 40 percent for impairment of the tibia and fibula is granted for the entire period on appeal.  

ORDER

An increased maximum rating of 40 percent for left tibia/fibula impairment is granted throughout the appeal period.  The appeal is allowed to this extent subject to the law and regulations governing the award of monetary benefits.  


______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs