Citation Nr: 18147839 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-35 656 DATE: November 6, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a right tibia and fibula fracture with right knee impairment is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Even in considering his complaints of pain, pain on motion, and functional loss, the Veteran’s residuals of a right tibia and fibula fracture did not result in moderate disability of the knee, loss range of motion to a compensable degree, or instability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the residuals of a right tibia and fibula fracture with right knee impairment have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1965 to May 1969. This matter comes before the Board from an April 2014 rating decision. In light of correspondence from the Veteran from March 2016, the Board finds that the issue of entitlement to TDIU has been raised by the record and considered part of the Veteran’s claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a January 2017 correspondence to the VA, the Veteran contends that the November 2016 examiner did not perform stability testing. The Veteran asserted that he was not tested for lateral instability, anterior instability (the Lachman test) painful motion, and weakness. He also asserts that had these tests been performed pain and weakness would have been evident. The examination report, however, indicates that stability testing including the Lachman test, Posterior drawer test, medial instability test, and lateral instability test were all performed and the results were recorded in the report. The Veteran has not otherwise presented evidence or argument questioning the competency of the examiner. 1. Entitlement to a rating in excess of 10 percent for the residuals of a right tibia and fibula fracture with right knee impairment Service treatment records show that the Veteran was in a motor vehicle accident that resulted in a closed mid-shaft fracture of the right tibia and fibula. A September 1969 rating decision granted service connection for this disability and assigned a 10 percent rating under Diagnostic Code 5262. In statements made in support of his claim the Veteran asserts that his service-connected residuals of a right tibia and fibula fracture with right knee impairment is more severely disabling than his current rating reflects. He specifically states that he has been diagnosed with degenerative joint disease (DJD) in his right knee, and this is causing him increased pain, weakness, and stiffness in that knee on a daily basis. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2018). Traumatic arthritis is rated pursuant to the criteria found in Diagnostic Codes 5010, which directs that evaluations are to be made pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. 38 C.F.R. § 4.71a (2018). 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 joint or joints involved. When 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1) (2018). Under Diagnostic Code 5257, other impairment of the knee, a 10 percent evaluation requires slight recurrent subluxation or lateral instability. A 20 percent evaluation requires moderate recurrent subluxation or lateral instability. A 30 percent evaluation requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides a 30 percent rating where knee flexion is limited to 15 degrees; 20 percent where limited to 30 degrees; 10 percent where limited to 45 degrees; and 0 percent where limited to 60 degrees. Diagnostic Code 5261 provides a 50 percent rating where knee extension is limited to 45 degrees; 40 percent where limited to 30 degrees; 30 percent where limited to 20 degrees; 20 percent where limited to 15 degrees; 10 percent where limited to 10 degrees; and 0 percent where limited to 5 degrees. Diagnostic Code 5262 provides a 40 percent rating for impairment of the tibia and fibula with nonunion, loose motion, and requiring a brace; 30 percent with malunion and marked knee or ankle disability; 20 percent with malunion and moderate knee or ankle disability; and 10 percent with malunion and slight knee or ankle disability. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5003, 5010, 5256, 5260, and 5261) or instability (Code 5257, 5262, and 5263). See VAOPGCPREC 9-2004 (September 17, 2004) and VAOPGCPREC 23-97 (July 1, 1997). Additionally, VA General Counsel has held that a veteran who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under diagnostic codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98, (1998). VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Moreover, an evaluation of a knee disability under diagnostic codes 5260 or 5261 does not preclude a separate evaluation under diagnostic codes 5257, 5258, or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2018). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (2018). Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2018). Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id.; see also Correia v. McDonald, 28 Vet. App. 158 (2016). In February 2012, the Veteran was diagnosed with DJD in his right knee and advised to consider a total knee replacement. Medical records from 2012 to 2014 reflect degenerative changes to the right knee as well as reports of increased pain and stiffness by the Veteran. The Veteran asserts that the increased pain in his knee results in weakness and is most prominent when he sits for a long time and then moves his knee. The records do not reflect subluxations or dislocations, or soft tissue swelling or tenderness. A March 2014 VA examiner did not find limitation of functional disability due to the Veteran’s service-connected right tibia and fibula fracture with right knee impairment. The Veteran was recorded has having a full (normal) range of motion (ROM) of the knee, before and after repetitive motion, and no additional loss due to pain. In addition to normal ROM, the examiner noted normal muscle strength and joint stability bilaterally. The Veteran was afforded another VA examination in November 2016. The examiner noted abnormal ROM bilaterally. The right knee extension measured 0 to 100 degrees, flexion measured 100 degrees to 0. The examiner indicated that this limitation did not itself contribute to functional loss. Pain with weight bearing and crepitus were noted. There was no additional ROM loss after repetitive use. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repeated use. The Veteran reports flare-ups with functional loss; however, examination was not conducted during a flare-up. The Veteran indicated that the last flare-up of his right knee was the day prior to the examination and was triggered by prolonged walking. The Veteran reported this flare-up lasted a few seconds. The examiner indicated that pain, weakness, fatigability, or incoordination do not significantly contribute to functional loss during a flare-up and indicated that the examination was consistent with the Veteran’s report of functional loss during flare-ups. Further, as previously indicated, stability testing including the Lachman test, Posterior drawer test, medial instability test, and lateral instability test were all performed and the results were normal bilaterally. No pain or weakness was noted by the examiner. The examiner noted normal muscle strength and no muscle atrophy. No ankylosis was noted on either side. Even in considering his complaints of pain, pain on motion, and functional loss, the Board finds that the assignment of a higher (20 percent) rating under Diagnostic Code 5262 is not warranted. The totality of the evidence fails to support a finding of moderate disability of the right lower extremity. The Veteran’s reports of increased pain and weakness, especially after prolonged sitting and the Veteran’s contention that his limitation is not from limited ROM, but from functional loss due to pain. These symptoms are contemplated by the present assigned 10 percent rating - slight knee disability. Indeed, both VA examiners determined that the Veteran had no additional loss of motion or functional impairment due to pain. The 2016 examiner specified that pain, weakness, fatigability, or incoordination do not significantly contribute to functional loss during a flare-up, and that the examination was consistent with the Veteran’s report of functional loss during flare-ups. Such was determined by a medical expert utilizing a Disability Benefits Questionnaire (DBQ), which was created by VA to provide accurate, competent, and probative medical findings. There are no findings that contradict that determination. It would also be improper of the Board to attempt to draw its own medical conclusions in light of the clear medical finding. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Consideration has been given as to whether the Veteran’s disability would warrant a higher rating under any other relevant diagnostic codes, including Diagnostic Codes 5003, 5257, 5258, 5260, 5261, and 5275. The joint pain associated with loss of cartilage in the right knee is contemplated by Diagnostic Code 5262, under which the Veteran’s disability is currently rated. A higher or separate rating under Diagnostic Code 5257 is not warranted as stability testing was normal. The Board acknowledges the Veteran’s subjective complaints but the findings of the VA examination are more probative. Again, the Board observes that such was determined by a medical expert utilizing a DBQ, which was created by VA to provide accurate, competent, and probative medical findings. There are no findings that contradict that determination, and that it would also be improper of the Board to attempt to draw its own medical conclusions in light of the clear medical finding. Additionally, measurements of range of extension and flexion during this time did not rise to a compensable level under Diagnostic Codes 5260 and 5261. Further, while the 2014 VA examiner noted the Veteran’s right leg was 2 centimeters shorter than his left, such would not support the assignment of a higher or separate compensable rating. The Board has considered whether a higher rating is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance to constitute functional loss. The Court specifically discounted the notion that the highest disability ratings are warranted where pain is merely evident as it would lead to potentially “absurd results.” Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s complaints of weakness, excess fatigability, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are contemplated by Diagnostic Code 5262. REASONS FOR REMAND 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is remanded. In light of correspondence from the Veteran from March 2016, he stated that his knee disability made it impossible for him work in any job appropriate for his experience and education. He said he was no longer able to keep up with the physical demands of employment. The AOJ has not developed or adjudicated the matter of whether the Veteran’s service-connected disabilities render him unemployable. Therefore, the TDIU claim must be remanded to the RO for adjudication in accordance with the holding in Rice. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate notice accompanied by the claims forms necessary to file and complete a TDIU claim. 2. The Veteran should also be afforded an appropriate VA examination to determine if his service-connected disabilities render him unemployable. All indicated tests and studies are to be performed. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner should determine, without taking age into account, whether it is as least as likely as not that the Veteran is precluded from obtaining or maintaining substantially gainful employment (consistent with his education and occupational experience) solely due to his service-connected disabilities either jointly or singularly. In doing so, the examiner should specifically address the Veteran’s statements asserting unemployability, the relevance of any non-service connected disorders, and the findings contained in the VA examination reports and any VA and private treatment notes of record. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Rekowski, Associate Counsel