Citation Nr: 18144297 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-40 987 DATE: October 24, 2018 ORDER Entitlement to a rating in excess of 10 percent for residuals of left tibia and fibula fractures is denied. Entitlement to a rating in excess of 10 percent for residuals of right tibia fracture is denied. Entitlement to an initial rating of 30 percent, but not higher, for post-traumatic chronic headaches is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has been diagnosed with bilateral knee arthritis. 2. The medical evidence of record does not show that the Veteran’s bilateral tibia disabilities exhibit signs or symptoms of ankylosis, instability, or an impairment of the tibia and fibula. 3. The Veteran experiences prostrating headaches that occur at least once a month. 4. There is no evidence that demonstrates that the Veteran’s headaches have caused the Veteran to suffer severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for residuals of left tibia and fibula fractures have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5262, 5271 (2017). 2. The criteria for entitlement to a rating in excess of 10 percent for residuals of right tibia fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5262, 5271 (2017). 3. The criteria for an initial rating of 30 percent, but not higher, for post-traumatic chronic headaches have been met. 38 U.S.C. §§ 1155, 5103, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In July 2018, the Veteran testified at a Board hearing that was conducted by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. Increased Rating 1. Entitlement to a rating in excess of 10 percent for residuals of left tibia and fibula fractures 2. Entitlement to a rating in excess of 10 percent for residuals of right tibia fracture A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not considered to be contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (including swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is seeking a rating in excess of 10 percent for his left and right tibia disabilities. The Board notes that the Veteran was awarded service connection for these disabilities in September 2014 and he is seeking a higher initial rating. The Veteran’s disability is currently rated according to Diagnostic Code 5260. The Board notes that arthritis under Diagnostic Code 5010 is to be rated on limitation of motion of the affected part as degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Disabilities of the knee are rated under DC 5256 through DC 5263 of 38 C.F.R. § 4.71a. For the purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71. The words “slight,” “moderate” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Diagnostic Code 5256 addresses ankylosis of the knee and authorizes ratings between 30 and 60 percent. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. A slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. A severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a non-compensable rating will be assigned for limitation of extension of the leg to 5 degrees. A 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees. A 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees. A 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. As to a current diagnosis, the Veteran’s lower extremity conditions have been diagnosed as bilateral knee arthritis. As to the Veteran’s lay statements, the Veteran has reported that he has ankle issues due to his conditions, his legs are weak, and that he has a tendency to fall. The Veteran has also stated that he is unable to walk long distances or participate in physical activities. See November 2015 Statement in Support of Claim and VA-Form 9. In addition, the Veteran testified that his legs and knees are his main concern. The Veteran stated that he has difficulty walking, he has pain in his legs, and he has a tendency to fall. Moreover, the Veteran stated that his conditions require him to use a cane. Lastly, the Veteran stated that he does not see a private doctor or a VA doctor for these conditions. See July 2018 Board Hearing Transcript. Turning to the medical evidence, the Veteran attended a VA examination in July 2014. The Veteran reported that he was involved in a motor vehicle accident in service and that is when he sustained injuries to his left and right tibias. The Veteran then stated that he has had pain in his knees since the accident. In addition, the Veteran reported flare-ups in his knees that result in increased pain after prolonged standing and walking. Upon examination, the examiner reported that the Veteran had right knee flexion of 100 degrees with pain beginning at 90 degrees. The Veteran also had left knee flexion at 90 degrees with pain beginning at 80 degrees. The Veteran had normal bilateral knee extension and the Veteran exhibited no signs of bilateral instability; however, the examiner noted that the Veteran had a slight subluxation in his right knee. Moreover, the examiner noted that the Veteran did not have “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. Furthermore, the examiner noted that the Veteran did not have any pertinent physical findings, complications, conditions, signs and/or symptoms related to his bilateral knee arthritis. See July 2014 VA examination. The Veteran later attended an additional examination in August 2016. At the examination, the Veteran reported that he experienced no significant changes in his legs since the last examination in 2014. The Veteran also stated that he continues to have bilateral weight bearing pain in his knees and lower legs. The Veteran added that he felt that his right ankle was giving way more, he denied swelling, numbness, and tingling. The Veteran further added that he does not experience flare-ups, but he needs occasional cane use. Upon examination, the examiner noted that the Veteran had right knee flexion 0 to 130 degrees and extension 130 to 0 degrees. The Veteran also had left knee flexion 0 to 135 degrees and extension 135 to 0 degrees. The examiner also noted that the Veteran did not have any signs or symptoms of ankylosis, no signs of pain on weight bearing, no signs of bilateral instability, and no signs of bilateral subluxation. In addition, the examiner noted that the Veteran did not have any pertinent physical findings, complications, conditions, signs and/or symptoms related to his bilateral knee arthritis. Lastly, the examiner reported that the Veteran’s range of motion has improved since his last exam and there are no significant changes. See August 2016 VA examination The Board notes that the record is silent for any medical treatment records regarding these issues because the Veteran does not receive treatment for his disabilities. See July 2018 Board Hearing Transcript. The Board acknowledges that the Veteran reported flare-ups in his 2014 VA examination. However, the Board finds that an additional examination to address the Veteran’s claimed flare-ups will not be necessary. The Board has reached this conclusion because the Veteran stated that he experienced an increase in pain, but he did not identify any lost range of motion during a flare-up. In addition, at his most recent VA examination, the Veteran did not identify any flare-ups at all. Thus, for the above stated reasons, the Board finds that an additional examination to address the Veteran’s report of a flare-up is not required. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board notes that the medical evidence of record demonstrates that Diagnostic Codes 5258, 5259, 5263 are not applicable in this case. Thus, these diagnostic codes will not be included in the Board’s discussion below. In sum, the Board finds that the Veteran’s left tibia condition has remained consistent and a rating increase is not warranted. Specifically, the medical evidence of record does not show that the Veteran has signs or symptoms of ankylosis, recurrent subluxation, or lateral instability. Moreover, the record does not show that the Veteran has left knee flexion limited to 30 degrees or left knee extension limited to 15 degrees. Furthermore, the record does not show that the Veteran has an impairment of his tibia and fibula with a moderate knee or ankle disability. In reaching this conclusion, the Board has considered the Veteran’s lay statements regarding pain and difficulty walking; however, these statements, while credible, are unfortunately outweighed by the results of the Veteran’s VA examinations, which the Board finds to be the most probative evidence of record. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for a left tibia disability, must be denied. With respect to the right tibia, the Board finds that the Veteran’s right tibia condition has remained consistent and that a rating increase is also not warranted. Specifically, the medical evidence of record does not show that the Veteran has signs or symptoms of ankylosis or lateral instability. In addition, the record does not show that the Veteran has left knee flexion limited to 30 degrees or left knee extension limited to 15 degrees. Moreover, the record does not show that the Veteran has an impairment of his tibia and fibula with a moderate knee or ankle disability. Furthermore, the Board acknowledges that the Veteran’s 2014 VA examination did demonstrate signs of a slight subluxation, but the Board finds that a separate compensable rating or a rating increase is not warranted. The Board has reached this conclusion because the examiner did not indicate that this symptom was moderate or severe in nature, there was no indication from the examiner that this symptom was due to his service-connected tibia disability, and the 2016 VA examiner found no evidence of a subluxation. Lastly, the Board has considered the Veteran’s lay statements regarding pain and difficulty walking; however, these statements are once again credible, they are outweighed by the results of the Veteran’s VA examinations, which the Board finds to be the most probative evidence of record. For the above stated reasons, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for a right tibia disability, must also be denied. Extra Considerations In addition, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a Veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required. Entitlement to a compensable rating for post-traumatic chronic headaches The Veteran contends that his disability warrants a compensable rating throughout the course of the appeal. The Board notes that the Veteran was awarded service connection for this issue in September 2014 and he is challenging his initial rating. In addition to the previously discussed principles regarding increased rating claims, the Board notes that the Veteran’s headaches have been rated pursuant to the criteria under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which pertains to migraine headaches. Under Diagnostic Code 8100, headaches with less frequent attacks are assigned a noncompensable disability rating. Where the evidence shows that the headaches occur on average once every two months over the last several months with characteristic prostrating attacks, a 10 percent disability rating is assigned. Where headaches occur with characteristic prostrating attacks on an average of once a month over the last several months, a 30 percent disability rating is appropriate. Migraine headaches with very frequent, completely prostrating and prolonged attacks that are productive of severe economic inadaptability warrant a maximum schedular 50 percent disability rating. 38 C.F.R. § 4.124a, DC 8100 (2017). The rating criteria do not define the term “prostrating.” According to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), pg. 1080, “prostration” is defined as “utter physical exhaustion or helplessness.” Essentially the same definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), which defines “prostration” as “extreme exhaustion or powerlessness.” The Board notes that severe economic inadaptability does not mean a claimant is completely unable to work, and VA conceded that the phrase “productive of severe economic inadaptability” in Diagnostic Code 8100 should be construed as either “producing” or “capable of producing” severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 400 (2004). As to a current diagnosis, the record reflects that the Veteran’s disability has been diagnosed as chronic post-traumatic headaches. As to the Veteran’s lay statements, the Veteran reported that he experiences prostrating headaches about once a week and when these headaches occur, he feels the effects for the rest of the day. See February 2015 Notice of Disagreement. The Veteran also testified that he has headaches two to four times a week. In addition, the Veteran stated that when he experiences a headache he has to lay down for an hour or two until it passes over. See July 2018 Board Hearing Transcript. Turning to the medical evidence at hand, the Veteran attended a VA examination for this issue in July 2014. The Veteran reported that he has experienced intermittent headaches since his motor vehicle accident on active duty. The Veteran reported that his headache pain radiates to his frontal areas. In addition, the Veteran reported that when he experiences a headache he also experiences sensitivity to sound, changes in vision, and the head pain lasts less than one day. Following the examination, the examiner opined that the Veteran did not have prostrating migraine attacks. See July 2014 VA examination. In July 2016, the Veteran attended an additional examination for this issue. The Veteran reported that he feels his headaches are more frequent. The Veteran also stated that he is having them almost every day and they are more intense. In addition, the Veteran reported pain in his head that lasts for less than a day and then he will also experience a sensitivity to light. Lastly, following the examination, the VA examiner opined that the Veteran did not suffer from prostrating migraine attacks. See July 2016 VA examination. The Board notes that the record is silent for any medical treatment records regarding this issue because the Veteran does not receive treatment for his headaches. See July 2018 Board Hearing Transcript. In sum, the Board finds that the Veteran’s condition has remained consistent and that a rating increase is warranted. The evidence of record does demonstrate that the Veteran experiences prostrating attacks that occur on average once a month. Specifically, the Board notes that the Veteran’s competent and consistent lay statements demonstrate that the frequency and severity of the Veteran’s condition best represents a 30 percent rating. However, while the Board has also considered a 50 percent of the rating, the evidence does not show that the Veteran experiences completely prostrating and prolonged attacks productive of severe economic inadaptability. Specifically, the Board notes that the record is silent for any medical or financial information that demonstrates that the Veteran’s headaches cause him to experience severe economic inadaptability. On the other hand, after a review of the record, the Board finds that the evidence, both positive and negative as to the issue of an increased rating for the Veteran’s headaches is at least in equipoise as to entitlement to a 30 percent rating. Therefore, based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that a rating of 30 percent, but not higher, for chronic post-traumatic headaches is warranted. Extra Considerations In addition, the Board has considered other applicable codes which would provide the Veteran with a higher rating. In this regard, the Board notes that the assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). After a review of the record, the available medical evidence demonstrated that Diagnostic Code 8100 was the most appropriate code to use throughout the pendency of the appeal. Thus, consideration of an alternate code for a separate or higher rating was not warranted throughout the pendency of the appeal. Moreover, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette, supra. As such, no further action as to this matter is required REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Board notes that the Veteran’s 2016 VA examiner indicated that the Veteran’s work was impacted because his headache disability would require him to sit down when he experienced a headache. In addition, the examiner noted that the Veteran’s bilateral tibia disability impacted his work because the Veteran was unable to stand or walk for prolonged periods of time. Accordingly, the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009), held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, for the above stated reasons, the Board finds that the issue of TDIU has been reasonably raised by the record. The matter is REMANDED for the following action: The RO should take all necessary steps to properly develop the Veteran’s claim for TDIU. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel