Citation Nr: 18142770 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 14-38 133A DATE: October 16, 2018 ORDER Entitlement to a rating in excess of 10 percent for residuals of a left fibula fracture (left fibula disability) is denied. REMANDED Entitlement to service connection for chronic lymphocytic leukemia (CLL), to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for graft versus host disease (GVHD) of the lips, to include as secondary to CLL is remanded. Entitlement to service connection diabetes mellitus type II (diabetes), to include as secondary to herbicide agent exposure is remanded. Entitlement to service connection for neuropathy of both feet, to include as secondary to diabetes is remanded. FINDING OF FACT The Veteran’s left fibula disability does not manifest with any malunion or a moderate disability of the knee or ankle. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a left fibula disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.16, 4.40-4.71, 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1967 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). In December 2016, the Board reopened the claim of entitlement to service connection for CLL and remanded all of the claims on appeal for further development. With regards to the issues of an increased rating for a left fibula disability and service connection for GVHD and neuropathy of both feet, the Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). With regards to the issues of CLL and diabetes, the Board’s directives have not been substantially completed and will be further discussed in the remand portion of the decision. 1. Entitlement to a rating in excess of 10 percent for a left fibula disability. The Veteran seeks a rating in excess of 10 percent for his left fibula disability. The appeal period before the Board begins on October 12, 2009, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s left fibula disability is rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5262, for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. 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 loss of motion and requiring a brace. The words “slight,” “moderate,” and “marked” are not defined in the rating schedule; rather than applying a mechanical formula, the Board must evaluate all of the evidence so that its decisions are equitable and just. See 38 C.F.R. § 4.6. For the reasons that follow, the Board finds that an increased rating is not warranted. Evaluation under DC 5262 contemplates that impairment of the tibia and fibula can affect the knee and/or ankle. Thus, while the evidence shows the Veteran does have knee and ankle problems, these are unrelated to the service-connected disability under consideration herein and will be disregarded in this evaluation. See Mittleider v. West, 11 Vet. App. 181 (1998); March 2018 VA Examination. The Veteran underwent VA examinations for his left fibula disability in November 2010 and March 2018. The Board finds that the November 2010 examination is inadequate for rating purposes as the examiner did not attempt to elicit information regarding flare-ups as required by Sharp and did not contain the required testing pursuant to Corriea. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59). During the March 2018 VA examination, the Veteran reported that he has occasional left medial and anterior ankle pain. He also reported that he had left anterior knee pain with popping and infrequent swelling. The examiner reported that a March 2018 x-ray showed there was no malunion or nonunion of the left fibula. The examiner reported that the x-ray only showed a remote healed fracture. Additionally, the examiner also reported that the Veteran had a current diagnosis related to his left ankle and left knee, but that these diagnoses were separate and unrelated to his left fibula disability. The examiner also noted that based on a review of the Veteran’s medical records, absence of symptoms, and normal clinical examination of the fibula, there were no residuals of the in-service left fibula fracture. Based on the above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s symptoms met or approximated the criteria for a higher rating under DC 5262 at any time. No malunion of the tibia or fibula is shown at any time. Rather, diagnostic testing has shown that the in-service fracture has healed. Therefore, entitlement to the next higher 20 percent rating for malunion of the tibia or fibula, with moderate knee or ankle disability, is not shown by the evidence of record. The Board notes that a 10 percent rating is the minimum compensable rating for this disability. A higher evaluation is not warranted pursuant to § 4.59. The Board has considered whether separate ratings are warranted. 38 C.F.R. § 4.25(b); Esteban v. Brown, 6 Vet. App. 259 (1994) (where the condition results in separate and distinct manifestations, they should each be recognized and combined under separate ratings); but see 38 C.F.R. § 4.14 (evaluation of the same disability or manifestation under various diagnoses is to be avoided). As noted above, the Veteran’s disability has not affected his knee or ankle; thus, application of DCs 5256-5261, DC 5263, and DCs 5270-5274 is not warranted. The Board has considered the use of staged ratings; however, the Veteran’s left fibula disability is rated 10 percent for the entire appeal period and at no point during that period has it more nearly approximated the criteria corresponding to a higher rating. Accordingly, the application of a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Entitlement to service connection for CLL and diabetes, to include as secondary to herbicide agent exposure is remanded. A remand is required to obtain substantial compliance with a prior Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition to herbicide agent exposure, such as Agent Orange, the Veteran, through his attorney, alternatively contends that his CLL and diabetes are due to exposure to toxic chemical solvents. See August 2017 Memorandum in Support of Appeal. In the December 2016 remand, the Board instructed the RO to request the U.S. Army and Joint Services Environmental Support Group (the Group) to verify, on a factual basis, whether the Veteran was exposed to herbicide agents and also request the Group to attempt to identify what solvents or chemicals the Veteran was exposed to while performing his duties in service. The evidence of record shows that while the RO requested the Group to verify herbicide agent exposure in accordance with the December 2016 remand, it did not request the Group to attempt to identify what solvents or chemicals the Veteran was exposed to in service. Additionally, there is no evidence of record that shows the Group actually attempted to identify any solvents or chemicals the Veteran was exposed to in service, other than herbicide agents. See February 2018 E-Mail Correspondence. As such, a remand is required to verify whether the Veteran was exposed to toxic solvents in service. 2. Entitlement to service connection for GVHD of the lips, to include as secondary to CLL is remanded. The Veteran contends that his GVHD of the lips is secondary to his CLL, specifically the bone marrow transplant performed in the course of treatment for his CLL. Thus, if service connection is granted for CLL, then service connection may also be warranted for GVHD of the lips based on a secondary theory of entitlement. See 38 C.F.R. § 3.310. Accordingly, the claims are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of the claim of entitlement to service connection for GVHD of the lips is deferred. 3. Entitlement to service connection for neuropathy of both feet, to include as secondary to diabetes is remanded. The Veteran contends that his bilateral foot neuropathy is secondary to his diabetes. Thus, if service connection is granted for diabetes, then service connection may also be warranted for neuropathy of the feet based on a secondary theory of entitlement. See 38 C.F.R. § 3.310. Accordingly, the claims are inextricably intertwined. Harris, 1 Vet. App. at 180. Adjudication of the claim of entitlement to service connection for neuropathy of both feet is deferred. The matters are REMANDED for the following action: Contact the appropriate service department and/or other sources with a request that it attempt to verify the Veteran’s exposure to toxic chemicals, including, but not limited to, trichloreythylene and paint-based solvents, during his period of service as a welder and assemblyman, during the period from May 1972 to March 1974. All attempts to obtain records should be documented. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel