Citation Nr: 18141207 Decision Date: 10/10/18 Archive Date: 10/09/18 DOCKET NO. 15-39 703 DATE: October 10, 2018 ORDER Entitlement to service connection for a left knee condition, including as secondary to service-connected left tibial stress fracture residuals, is denied. Entitlement to service connection for a right knee condition, including as secondary to service-connected right tibial stress fracture residuals, is denied. The reduction in the rating for left tibial stress fracture residuals from 10 percent to 0 percent was not proper, and the 10 percent rating is restored, effective September 1, 2017. The reduction in the rating for right tibial stress fracture residuals from 10 percent to 0 percent was not proper, and the 10 percent rating is restored, effective September 1, 2017. Entitlement to a disability rating higher than 10 percent for left tibial stress fracture residuals is denied. Entitlement to a disability rating higher than 10 percent for right tibial stress fracture residuals is denied. FINDINGS OF FACT 1. The Veteran has not had any left or right knee disability during the period on appeal. 2. In December 2016, the Department of Veterans Affairs (VA) Regional Office (RO) mailed a letter to the Veteran at her latest address of record proposing the reduction in her 10 percent ratings for tibial stress fracture residuals, which set forth all material facts and reasons therefor and notified her she had 60 days to present additional evidence to show her compensation payments should have been continued at their then-present level. 3. The Veteran did not submit any additional evidence within the prescribed 60-day period. 4. The Veteran’s ratings for her bilateral tibial stress fracture residuals had been in effect for more than 5 years at the time the RO reduced them. 5. The April 2016 VA examination was less full and complete than the July 2013 and September 2015 VA examinations that continued her 10 percent ratings for her bilateral tibial stress fracture residuals, and did not demonstrate sustained improvement in the Veteran’s condition. 6. Throughout the appeal period, the Veteran’s bilateral tibial stress fracture residuals have manifested as no worse than bilateral lower leg pain caused by extended standing and walking that results in subjective weakness and lack of endurance.   CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition, including as secondary to service-connected left tibial stress fracture residuals, have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a right knee condition, including as secondary to service-connected right tibial stress fracture residuals, have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The RO satisfied the procedural requirements governing the reduction in rating for the Veteran’s service-connected bilateral tibial stress fracture residuals prior to effectuating the reduction. 38 C.F.R. § 3.105(e). 4. The reduction in rating for left tibial stress fracture residuals from 10 percent to 0 percent as of September 1, 2017, was improper, and restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344. 5. The reduction in rating for right tibial stress fracture residuals from 10 percent to 0 percent as of September 1, 2017, was improper, and restoration of the 10 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.344. 6. The criteria for entitlement to a rating higher than 10 percent for left tibial stress fracture residuals for any portion of the appeal period have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.71a, Diagnostic Code (DC) 5299-5263. 7. The criteria for entitlement to a rating higher than 10 percent for right tibial stress fracture residuals for any portion of the appeal period have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.71a, DC 5299-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1997 to May 1999. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a RO rating decision dated September 2013, which denied the Veteran’s claims for entitlement to service connection for bilateral knee conditions as secondary to her service-connected bilateral tibial stress fracture residuals, and entitlement to a disability rating higher than 10 percent for her bilateral tibial stress fracture residuals. While this appeal was pending, the RO also reduced the disability ratings for her bilateral tibial stress fracture residuals. She filed a notice of disagreement with that reduction, and the RO addressed the reduction issue in the 2017 supplemental statement of the case. The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the September 2015 statement of the case and June 2017 supplemental statement of the case and are not repeated here in full. Neither the Veteran nor her prior representatives raised any other issues with the duty to notify or the duty to assist not addressed herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “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”). Thus, the Board need not discuss any potential issues in this regard. Although additional evidence was added to the file in connection with other claims after the RO last issued a June 2017 supplemental statement of the case, that evidence is either not relevant to the issues decided herein or is duplicative of previously obtained evidence. Finally, neither the Veteran nor her prior representatives raised any other issues not addressed herein, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming Board not required to address issues unless specifically raised by claimant or reasonably raised by evidence of record). Service Connection The Veteran seeks secondary service connection for a bilateral knee condition, which she contends is caused by her service-connected bilateral tibial fracture residuals. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“In the absence of proof of a present disability there can be no valid claim.”). The preponderance of the competent and credible evidence shows the Veteran has not had a left or right knee disability during the period on appeal. The Veteran underwent VA examinations of her knees and lower legs in July 2013, September 2015, and April 2016. The July 2013 examination noted the Veteran suffered from chronic bilateral shin splints that began in service, but found no disability in either knee. The Veteran had bilateral knee flexion limited to 120 degrees due to body habitus (i.e., physique or body build), with no objective evidence of painful motion, and no limitation of bilateral knee extension or objective evidence of painful motion upon extension. The examiner found no additional limitation in range of motion of the knee or lower leg following repetitive use testing, no functional loss or impairment of the knee or lower leg, normal muscle strength bilaterally, and no anterior, posterior or medial-lateral knee instability upon objective testing. The September 2015 examination also showed no disability in either knee. The Veteran had bilateral knee flexion to 135 degrees (with 140 being normal), with pain noted but not resulting in functional loss. She had pain bilaterally with weight bearing, but no limitation of bilateral knee extension, no additional limitation to range of motion after repetitive use testing, no ankylosis, normal muscle strength bilaterally with no muscle atrophy, and no anterior, posterior or medial-lateral knee instability upon objective testing. The examiner found the Veteran’s bilateral shin splits and tibial stress fracture residuals did not affect the range of motion of either her knees or her ankles. The examiner found no then-present or history of any semilunar cartilage condition. X-rays showed no arthritis or other pathology of either knee. As to the Veteran’s subjective complaints of pain, the examiner stated there was “no literature that indicates bilateral tibial stress fractures and bilateral shin splints cause bilateral knee pain.” The April 2016 examination also showed no disability in either knee. The Veteran had normal range of motion in both knees for both flexion and extension (including after repetitive use testing), with no pain noted upon examination, no pain with weight bearing, and no ankylosis or crepitus. She had normal muscle strength with no atrophy. The examiner found no functional impact, and, consistent with the 2015 examiner, found the Veteran’s “[s]ubjective symptoms did not correlate with diagnosis of tibial stress fractures or residuals of tibial stress fractures.” The Veteran’s medical treatment records are consistent with the objective findings of the VA examinations, showing occasional complaints of knee pain but no diagnosis or functional impairment. In October 2013, the Veteran underwent a VA primary care examination that showed her toe stand and heel stand were normal, and that she could squat “to 100%.” In June 2016, the Veteran went to VA following a motor vehicle collision where she reported injuring her lower left leg, but denied any difficulty with weight bearing or walking. The Board considered Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding U.S. Court of Appeals for Veterans Claims erred as matter of law in finding veteran’s pain alone, absent specific diagnosis or otherwise identified disease or injury, could not constitute a disability under 38 U.S.C. § 1110) and other relevant authorities. The Board considered the Veteran’s statements regarding her symptoms, which have generally included pain in her lower legs with prolonged standing or walking, assertions that her knees will “give way” with prolonged standing, and that her left knee will sometimes “lock.” See, e.g., July 2013 VA examination record; October 2013 VA treatment record; September 2015 VA examination report. The Board also considered her statements regarding the functional impact the symptoms have on her ability to work. However, Saunders does not stand for the proposition that “a veteran could demonstrate service connection simply by asserting subjective pain” because, “to establish a disability, the veteran's pain must amount to a functional impairment.” Saunders, 886 F.3d at 1367. “Functional impairment” is defined as “the ability of the body or a constituent part of it to function under the ordinary conditions of daily life including employment.” Id. at 1363 (quoting 38 C.F.R. 4.10). In other words, as the CAVC observed “if pain doesn’t cause impairment, it doesn’t qualify as a disability.” Here, the medical evidence conclusively shows no such functional impairment despite the Veteran’s complaints. The objective medical findings demonstrated by specific clinical tests have consistently showed no bilateral knee instability, weakness, or locking, no impaired muscle strength, and no decreased range of motion of the knees or objective evidence of painful motion upon testing. [The decreased motion shown was directly attributable to the Veteran’s body habitus.] The Board finds the weight of the medical evidence goes against finding the Veteran has had any left or right knee disability during the period on appeal, and thus service connection is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable because the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).   Rating Reductions During the pendency of this appeal, the RO decreased the Veteran’s rating for her bilateral tibial fracture residuals from 10 percent to 0 percent, effective September 1, 2017. As the reduction was effectuated while the Veteran was appealing her denial of a higher rating, the threshold issue before the Board is whether the reduction was proper. The Board finds it was not because the April 2016 VA examination upon which the RO expressly based the reduction was inadequate for purposes of reduction. When reducing a disability rating, the RO must follow certain procedural guidelines. 38 C.F.R. § 3.105(e). The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction and mail it to the Veteran’s latest address of record. Id. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Id. Then a rating action will be taken to effectuate the reduction. Id. The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. Id. In this case, the RO properly performed the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the disability ratings for bilateral tibial stress fracture residuals. In December 2016, the RO notified the Veteran and her then-representative of VA’s intention to reduce her ratings for her bilateral tibial stress fracture residuals from 10 percent to 0 percent, setting forth all material facts and reasons for the reduction. At that time, the RO instructed the Veteran to submit within 60 days any additional evidence to show that her ratings should not be reduced, and to request a predetermination hearing if desired. The Veteran did not submit any evidence, and when her then-representative scheduled a hearing on her behalf, she cancelled it. The RO took final action to reduce the disability rating in a June 2017 rating decision, effective September 1, 2017, and informed the Veteran of this decision by letter.   The Board acknowledges the Veteran’s claim that she never received the December 2016 notification regarding the proposed reduction. See Letter dated June 27, 2017. However, the record shows that notifications of both the proposed rating reduction and actual rating reduction were mailed to the Veteran's latest address of record, as well as to her then-representatives, and are not shown to have been returned as undeliverable. The Veteran's statement alone is insufficient to rebut the presumption that VA properly discharged its official duties in mailing notice of the reduction to the Veteran at her address of record. See Crain v. Principi, 17 Vet. App. 182, 186-87 (2003). Accordingly, the Board finds the RO satisfied the procedural requirements of 38 C.F.R. § 3.105(e). Therefore, the remaining question is whether the reduction of the disability ratings was proper. At the time of the September 2017 ratings reduction, the ratings had been in effect since May 1999. Where a rating has been in effect for five years or more, it may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish or continue the existing disability rating. Moreover, ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, even if material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Where VA has reduced a Veteran’s rating without observing applicable laws and regulations, such a rating is void ab initio and will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). The Veteran underwent VA examinations for her bilateral tibial fracture residuals in July 2013, September 2015, and April 2016. The RO determined the 2013 and 2015 VA examinations showed some, but not sustained improvement. See September 2013 and December 2016 rating decisions. Thus, the proposed reduction could only be proper if the April 2016 VA examination was, in the first instance, at least as “full and complete” as the 2013 and 2015 examinations upon which the Veteran’s 10 percent ratings were continued, and, if so, showed sustained improvement that would be maintained under the ordinary conditions of life. See 38 C.F.R. § 3.344(a) (“Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.”). The Veteran contends the April 2016 VA examination was inadequate as a basis of reduction because of inaccuracies noted in the report. Specifically, in the diagnosis section, the examiner selected only the Veteran’s left leg as affected by shin splints whereas she has a clearly diagnosed history of bilateral shin splints. In addition, the examiner incorrectly marked in the “Additional conditions” section that the Veteran did not have shin splints. Moreover, the Veteran has competently and credibly reported a consistent history of lower leg pain caused by extended standing and walking that results in subjective leg weakness and lack of endurance – in short, symptoms and functional limitations that manifest upon repetitive use over time. See, e.g., October 2013 VA treatment record; September 2015 VA examination report. However, the April 2016 VA examiner failed to address this, stating only that she was unable to speculate on any such functional impact without resort to speculation due to non-observation. The examiner did not negatively find against the credibility of the Veteran’s complaints; rather, it was stated that the results of the exam were neither medically consistent nor inconsistent with her statements describing functional loss with repetitive use over time. The Board finds the April 2016 VA examination is inadequate for purposes of justifying a reduction in her ratings. See 38 C.F.R. § 3.344(a); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (Board may reject a medical opinion based on an inaccurate factual basis); Jones v. Shinseki, 23 Vet. App. 382 (2010) (use of “mere speculation” language without providing any supporting analysis why an opinion cannot be provided is inadequate). Accordingly, and as the other two VA examinations of record did not show sustained improvement in the Veteran’s condition, the reduction was improper and the Veteran’s rating is restored. Increased Rating The Veteran’s 10 percent ratings having been restored, the remaining issue before the Board is her claim for a higher rating, which the RO denied in the September 2013 rating decision currently on appeal. Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. If the Rating Schedule does not provide a 0 percent evaluation for a given Diagnostic Code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The assignment of a particular diagnostic code to evaluate a disability is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another Diagnostic Code is more appropriate than the one used by the RO. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The changes made herein are discussed fully below. VA regulations also instruct that evaluation of a service-connected disability involving the musculoskeletal system requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Although pain alone does not equate with functional loss under 38 C.F.R. § 4.40, pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion may cause functional loss if it affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Rating Schedule does not contain a specific Diagnostic Code for tibial stress fracture residuals and the RO initially rated her conditions by analogy as knee impairments under DC 5299-5257. Effective September 1, 2017, the RO decreased her ratings to 0 percent under DC 5299-5262 (impairment of tibia and fibula) based on the absence of malunion of the tibias and fibulas with slight disability of the knees or ankles, which are the minimum criteria for a compensable rating under that Diagnostic Code. For the reasons set forth previously, the preponderance of the competent and credible evidence shows the Veteran has not had any disability of the knees at any point during the appeal period. Further, the Veteran has not claimed, and the evidence does not show, the Veteran has had any sort of ankle disability at any point during the appeal period. However, the Veteran has competently and credibly reported a consistent history of lower leg pain caused by extended standing and walking that results in subjective leg weakness and lack of endurance. See, e.g., October 2013 VA treatment record; September 2015 VA examination report. These symptoms are corroborated by her sister’s September 2014 lay statement attesting to her personal observations of the Veteran’s leg weakness and lack of endurance. The Board finds rating the Veteran’s bilateral tibial stress fracture residuals by analogy under DC 5299-5263 most closely approximates the functions affected and is most closely analogous to the anatomical localization and symptomatology of her condition for the entire period on appeal. Under DC 5299-5263, a 10 percent rating (the highest available) is warranted where the Veteran has acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71(a), DC 5263. Here, the Veteran does not have genu recurvatum (or any other knee disability), but she does have acquired, traumatic damage (bilateral tibial stress fracture residuals) that manifests through lower leg pain that causes subjective leg weakness and decreased endurance when walking and standing (i.e., in weight-bearing conditions). The Board finds DC 5299-5257 (knee, other impairment of), under which the Veteran’s conditions were rated for the period to September 1, 2017, is not the most analogous Diagnostic Code for any portion of the period on appeal because the weight of competent and credible evidence does not show any symptoms comparable to recurrent subluxation or lateral instability. The Board also finds DC 5299-5262 (tibia and fibula, impairment of), under which the Veteran’s conditions were rated for the period starting September 1, 2017, is not the most analogous Diagnostic Code for any portion of the period on appeal because the evidence shows the Veteran does not have nonunion of the tibia and fibula, nor malunion with any knee or ankle disability. The Board also considered the other Diagnostic Codes relating to the knees and legs and finds they are not more closely analogous to the Veteran’s conditions than DC 5299-5263. The Board has also considered the extent of functional impairment on use. The Veteran described lower leg pain on use when walking and standing resulting in functional impairments of subjective leg weakness and decreased endurance. However, the medical evaluations with repetitive testing do not show any decrease to her range of motion in her knees (nor has the Veteran herself described her limitations in terms of decreased range of motion), nor any objective knee instability or weakness. The Board finds that for the entire period on appeal, the Veteran is entitled to a disability rating of 10 percent, but no higher, for each of her bilateral tibial stress fracture residuals. 38 C.F.R. §§ 4.40, 4.71a, DC 5299-5263. As the Veteran has no functional impairment of the knees or ankles, the Board finds no basis for a higher rating still when considering functional impairment on use under 38 C.F.R. §§ 4.45 and 4.59. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel