Citation Nr: 18145813 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-08 397 DATE: October 30, 2018 ORDER Entitlement to a compensable rating for service-connected residuals of fractured right tibia is denied. Entitlement to an initial increased rating in excess of 10 percent disabling for service-connected ischemic heart disease is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, residuals of a fractured right tibia did not manifest as a malunion of the tibia with slight knee or ankle disability. 2. For the entire rating period on appeal, the weight of the evidence shows that the Veteran had a workload of greater than 7 METs but not greater than 10 METs, resulting in dyspnea and angina. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of fractured right tibia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5262 (2017). 2. The criteria for an increased rating in excess of 10 percent disabling for ischemic heart disease have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.140, DC 7017 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Air Force from November 1965 to February 1969. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO), which granted service connection for ischemic heart disease and denied an increased rating in excess of 10 percent disabling for service-connected residuals of fractured right tibia. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that 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 v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal 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. Id. In this case, the Board finds that staged ratings are not warranted for either claim on appeal. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a compensable rating for service-connected residuals of a fractured right tibia The Veteran was assigned an initial noncompensable rating in accordance with Diagnostic Code 5299-5262 (hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under Diagnostic Code 5262 (impairment of the tibia and fibula), a 10 percent evaluation is warranted where there is malunion with slight knee or ankle disability. A 20 percent rating is warranted where there is malunion with moderate knee or ankle disability. A 30 percent rating is warranted where there is malunion with marked knee or ankle disability. A 40 percent rating requires nonunion “with loose motion, requiring brace.” 38 C.F.R. § 4.71a, DC 5262 (2017). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2017). The Veteran contends that an increased 10 percent rating is warranted for service-connected residuals of fractured right tibia. See September 2015 notice of disagreement. In a May 2015 VA examination, the Veteran was diagnosed with a right tibia and or fibula fracture as of service. The Veteran denied problems with the knee or ankle associated with the fracture to his tibia but reported some pain in the right lower leg if he is working at an angle. Upon examination, the Veteran had normal range of motion for the right knee with no additional functional loss or range of motion after repetitive use testing. The right knee had normal muscle strength without atrophy or ankylosis, and the Veteran did not have right knee joint instability or recurrent subluxation. The Veteran reported having shin splints on both legs, which did not affect knee range of motion, and had a right lower leg stress fracture, which did not affect the range of motion of the ankle. Upon completion of the examination, the VA examiner indicated that there is no other diagnosis rendered at the time of the examination other than his right fractured tibia that he sustained in the military. The Veteran only complained of intermittent pain in the right lower leg with activities that require an incline-type use of the lower leg (such as pushing a lawn mower on a hill). Otherwise, the VA examiner indicated that no other residuals were noted. In a January 2016 VA examination, the VA examiner confirmed a diagnosis of residuals of a right tibia fracture from 1968. The Veteran indicated that he could not walk for greater than 10 to 15 minutes without pain, which would increase the longer he walked on it. He reported that he averts walking on sloped or uneven surfaces and stated that he couldn’t run. The right knee had normal muscle strength without atrophy or ankylosis, and the Veteran did not have right knee joint instability or recurrent subluxation. The Veteran reported having shin splints on both legs, which did not affect knee range of motion, and had a right lower leg stress fracture, which did not affect the range of motion of the ankle. The VA examiner indicated that the Veteran’s right lower leg condition would have mild impact for physical activity that required extended walking, standing or stooping, and would have no impact on sedentary employment. Within a February 2016 VA Form 9, the Veteran indicated that he does not have a problem with his right knee but has pain from the area where he had his fracture. He indicated that the older he got, the more it has bothered him. Upon review of the entire record, for the entire rating period on appeal, the weight of the evidence shows that residuals of a fractured right tibia did not manifest as a malunion of the tibia with slight knee or ankle disability under Diagnostic Code 5265. The Board finds probative the Veteran’s statements of record indicating that he does not have a problem with his right knee, but rather reported pain in his right lower right leg where he sustained a fractured tibia in service, which affected his ability to walk for more than 10 to 15 minutes or to work or walk at an incline. VA examinations of record show the Veteran reported having shin splints on both legs, which did not affect knee range of motion, and had a right lower leg stress fracture, which did not affect the range of motion of the ankle. Additionally, VA examinations show the Veteran had normal range of motion for the right knee with no additional functional loss or range of motion after repetitive use testing. The right knee had normal muscle strength without atrophy or ankylosis, and the Veteran did not have right knee joint instability or recurrent subluxation. Therefore, the Board finds that the Veteran did not have a slight knee or ankle disability with malunion of the right throughout the entire rating period on appeal. The Board has also considered the other potentially applicable Diagnostic Codes relating to service-connected residuals of a fractured right tibia. The VA examinations of record show that the Veteran does not have ankylosis of the right knee, recurrent subluxation or lateral instability of the right knee, or limitation of flexion or limitation of extension of the right leg. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5260, 5261 (2017). Therefore, the Board finds that a higher rating is not warranted under another applicable Diagnostic Code for the entire rating period on appeal. Accordingly, the Board finds that an increased compensable rating is not warranted for the entire rating period on appeal for service-connected residuals of a fractured right tibia. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). 2. Entitlement to a rating in excess of 10 percent disabling for service-connected ischemic heart disease Service-connected ischemic heart disease has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7005 (arteriosclerotic heart disease (coronary artery disease)). The Veteran was assigned an initial 10 percent rating in accordance with Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent rating is assigned in cases where a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where continuous medication is required. A 30 percent rating is assigned where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electro-cardiogram, echocardiogram, or x-ray. A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, DC 7005 (2017). When evaluating disabilities of the cardiovascular system under Diagnostic Codes 7000-7007, 7011, and 7015-7020, it must be ascertained in all cases whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication. 38 C.F.R. § 4.100 (2017). METs testing is also required in all cases except: (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50 percent or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; (4) when a 100 percent evaluation can be assigned on another basis. Id. If left ventricular ejection fraction (LVEF) testing is not of record, the cardiovascular disability must be based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the cardiovascular disability. Id. The Veteran contends that an increased rating of at least 20 percent disabling for service-connected ischemic heart disease is warranted. See September 2015 notice of disagreement. A May 2015 VA examination shows that the Veteran has a diagnosis of coronary artery disease status post angioplasty in May 2014. The Veteran did not have congestive heart failure and reported taking continuous medication required for control of his heart disability. Diagnostic testing included an April 2014 EKG and April 2014 stress test, which did not show evidence of cardiac hypertrophy or cardiac dilatation. Upon the April 2014 stress test, the VA examiner indicated that clinical findings were suggestive of reversible ischemia in the anterior septal wall, with a METs level of 7.1. The April 2014 EKG was normal. On interview-based METs testing, the examiner reported that the Veteran had an estimated workload of greater than 7 METs but not greater than 10 METs, resulting in dyspnea and angina, consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood and jogging (6 mph). The functional impact of his disability was having some limitations due to his complaints of shortness of breath with activity and occasional sharp chest pain. A January 2016 VA examination confirms the Veteran’s diagnosis of coronary artery disease. The Veteran did not have congestive heart failure and reported taking continuous medication required for control of his heart disability. Diagnostic testing included the April 2014 EKG and April 2014 stress test. On interview-based METs testing, the examiner reported that the Veteran had an estimated workload of greater than 5 METs but not greater than 7 METs, resulting in dyspnea, consistent with activities such as walking one flight of stairs, golfing (without cart), mowing lawn (push mower) and heavy yard work (digging). The functional impact of his disability was having mild impact for physical employment because of exercised induced ischemia, but would have no impact for sedentary work. A January 2016 private stress test shows the Veteran had a history of hypertension. During the stress test, the Veteran achieved a work load of 10.2 METs, resulting in slight angina at recovery. The private physician opined that the private stress test was a normal study with normal LV systolic function and wall motion. Upon review of all the evidence, lay and medical, the Board finds that for the entire rating period on appeal, the weight of the evidence shows that the Veteran had a workload of greater than 7 METs but not greater than 10 METs, resulting in dyspnea and angina. A May 2015 VA examination includes April 2014 stress test findings, which show a METs level of 7.1, and an interview-based METs test showing an estimated workload of greater than 7 METs but not greater than 10 METs, resulting in dyspnea and angina, indicative of a 10 percent rating under Diagnostic Code 7005. And while a January 2016 VA examination includes an interview-based METs test showing an estimated workload of greater than 5 METs but not greater than 7 METs, resulting in dyspnea, the Board finds probative a January 2016 private exercise stress test in which METs testing was conducted, showing the Veteran achieved a work load of 10.2 METs, resulting in slight angina at recovery. See 38 C.F.R. § 4.100 (2017). Throughout the rating period on appeal, the Veteran required continuous medication to control his heart disability and diagnostic testing did not show cardiac hypertrophy or dilatation. (Continued on the next page)   Accordingly, the Board finds that the weight of the evidence shows the Veteran had an estimated workload of greater than 7 METs but not greater than 10 METs, resulting in dyspnea and angina, warranting a continued 10 percent disability rating for service-connected ischemic heart disease. Because a preponderance of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application and the claim must be denied. 38 U.S.C. § 5107 (2012); C.F.R. § 3.102 (2017). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel