Citation Nr: 1806728	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-07 686	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Entitlement to a disability rating in excess of 50 percent for an acquired psychiatric disorder prior to March 17, 2014.

2.  Entitlement to a compensable disability rating for a stress fractures of the lower right extremity.

3.  Entitlement to a compensable disability rating for a stress fractures of the lower left extremity.

4.  Entitlement to a total disability rating due to individual unemployability (TDIU).

5.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance.


REPRESENTATION

Veteran represented by:	Disabled American Veterans
ATTORNEY FOR THE BOARD

David R. Seaton, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1995 to July 1996.
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 

These matters were previously before the Board, and, in June 2016, the Board disposed of the Veteran's claim for an increased disability rating for an acquired psychiatric disorder and remanded the remaining issues for further development.  Further development in substantial compliance with the Board's remand instructions has been completed.  In October 2017, the Court of Appeals for Veterans Claims (Court) vacated the Board's decision in part and remanded the claim for an increased disability rating for an acquired psychiatric disorder for further consideration.

The issues of entitlement to an increased disability rating for an acquired psychiatric disorder, to TDIU, and to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's stress fractures of the lower right extremity have manifested in painful motion without nonunion or malunion of the tibia or fibula, and the lower right extremity did not manifest in ankylosis, recurrent or subluxation or lateral instability, a cartilage condition, a flexion of 30 degrees or less, or an extension of 15 degrees or more; and the Veteran's diagnosis of genu recurvatum was unrelated to his previously service-connected stress fractures.

2.  The Veteran's stress fractures of the lower left extremity have manifested in painful motion without nonunion or malunion of the tibia or fibula, and the lower right extremity did not manifest in ankylosis, recurrent or subluxation or lateral instability, a cartilage condition, a flexion of 30 degrees or less, or an extension of 15 degrees or more; and the Veteran's diagnosis of genu recurvatum was unrelated to his previously service-connected stress fractures.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating of 10 percent for stress fractures of the right lower extremity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263 (2017).

2.  The criteria for a disability rating of 10 percent for stress fractures of the left lower extremity.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  Thus, adjudication of her claim at this time is warranted.

As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Service treatment records, VA treatment records, and private treatment records have been obtained.  Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but she declined.

The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes.  The Board notes that the Veteran objected to the adequacy of the October 2008 VA examination.  Nevertheless, the Veteran was provided a new VA examination in October 2017.  Therefore, any potential problems with the October 2008 VA examination were cured to the extent that it was possible.  Additionally, the Veteran has not objected to the adequacy of the October 2017 VA examination.

The Board notes that this matter was previously remanded in order to obtain additional treatment records and to provide additional VA examinations.  Additional treatment records have been associated with the claims file, and the Veteran was provided additional VA examinations.  As such, further development in substantial compliance with the Board's previous remand instructions has been completed.

As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met.

Knees

At issue is whether the Veteran is entitled to compensable disability ratings for her stress fractures of the bilateral lower extremities.  The weight of the evidence indicates that the Veteran is entitled to a minimum compensable disability ratings, but only a minimum compensable disability rating, for each extremity.

The Veteran first filed for service connection for stress fractures in July 1996, and, in December 1996, the RO granted service connection and assigned a noncompensable disability rating effective the date the claim was received.  In June 2008, the RO filed and increased rating claim, and, in June 2009, the RO denied the Veteran's claim.  The Veteran appealed.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

The Veteran's disabilities are evaluated pursuant to the diagnostic codes applicable to degenerative arthritis, the knee, and the leg; which are Diagnostic Codes 5003, & 5256 - 5263.  See 38 C.F.R. § 4.71a.  The Board notes that Diagnostic Codes 5256 (ankylosis of the knee), 5257 (recurrent subluxation or lateral instability), 5258 (dislocated semilunar cartilage), 5259 (removal of semilunar cartilage), and 5262 (tibia or fibula impairment) have not been raised by the record, because, the Veteran has nearly full range of motion in her knees and has not been diagnosed with a recurrent subluxation, lateral instability, dislocation or removal of semilunar cartilage, or nonunion or malunion of the tibia and fibula.  The Veteran was diagnosed with genu recurvatum in an August 2008 VA physical treatment note, but the Veteran was not granted service connection for this condition; and the record does not suggest or indicate that her diagnosis of genu recurvatum was related to her previously service-connected stress fractures of the lower extremities.  As such, Diagnostic Code 5263 (genu recurvatum) is not raised by the record either.  38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, & 5263.  
Under Diagnostic Code 5260, a disability rating of 10 percent is assigned when forward flexion is limited to 45 degrees, and a 20 percent disability rating is assigned when forward flexion is limited to 30 degrees.  Finally, a disability rating of 30 percent is assigned when forward flexion is limited to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260.  

Under Diagnostic Code 5261, a 10 percent disability rating is assigned when extension is limited to 10 degrees, and a 20 percent disability rating is assigned when extension is limited to 15 degrees.  A 30 percent disability rating is assigned when extension is limited to 20 degrees, and a 40 percent disability rating is assigned when extension is limited to 30 degrees.  Finally, a 50 percent disability rating is assigned when extension is limited to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

Under Diagnostic Code 5003, a disability rating of 10 percent is assigned when a major joint manifests limitation of motion 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 disability rating is assigned with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent disability rating is assigned with X-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

The Veteran's treatment records indicate that the Veteran manifested leg symptoms throughout the period on appeal including pain, tingling, and restricted range of motion.  The Veteran also submitted written statements indicating that that she manifested leg symptoms including pain on motion.

An August 2008 VA physical treatment note indicates that the Veteran manifested genu recurvatum, and the Veteran manifested a flexion of 130 degrees.  

The Veteran underwent a VA examination in October 2008.  The Veteran reported bilateral knee pain, giving way, swelling, throbbing, burning, locking, weakness, stiffness, and dullness, and she indicated that her knee pain increased upon walking, standing, kneeling, crawling, and squatting.  The examiner indicated that there was no warmth, effusion, swelling, tenderness, or ligament instability or rotatory instability.  Drawer and McMurray's test were both negative.  The Veteran's flexion was to 140 degrees bilaterally, and her extension was to zero degrees bilaterally.  Repetitive range of motion testing did not result in additional loss of range of motion.  The Veteran claimed that she manifested pain, fatigue, weakness, and lack of endurance and coordination after repetitive movement as well as during flare-ups which occur regularly.

The Veteran underwent another VA examination in October 2017.  The Veteran denied flare-ups of the knee or lower leg and functional loss or impairment.  The Veteran's flexion was to 140 degrees bilaterally, and her extension was to zero degrees bilaterally.  There was no pain on weight bearing, but there was objective evidence of localized tenderness or pain on palpation.  The Veteran was able to perform three repetitions of range of motion testing without additional loss of range of motion.  Muscle strength testing revealed normal muscle strength.  There were no ankylosis or cartilage conditions, and joint stability testing was normal.  The examiner identified fibula and tibia impairments like shin splints, but the examiner did not identify a diagnosis of malunion or nonunion of the fibula or tibia.  Additionally, the examiner opined that the Veteran's stress fractures are temporary, and that they appear to have resolved.

The Veteran is entitled to a minimum compensable disability rating for each lower extremity.  The Veteran has been granted service connection for stress fractures of the bilateral lower extremities.  The Veteran has made credible statements that her leg conditions have manifested pain especially upon motion.  The Veteran is competent to report on her symptoms, and the Board finds her reports credible.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Board notes that in October 2017 a VA examiner opined that the Veteran's condition appear to have resolved.  Nevertheless, it is the intent of the rating schedule to recognize that painful motion due to a healed injury is productive of a minimum compensable disability rating.  38 C.F.R. § 4.59.  As such, the Veteran is entitled to a minimum compensable rating in each lower extremity.

The Veteran is not entitled to an increased disability rating under Diagnostic Code 5003.  Diagnostic Code 5003 provides for a maximum disability rating of 20 percent.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  As discussed above, the Board is granting the Veteran a disability rating of 10 percent for each lower extremity.  After taking the bilateral factor into consideration, the Veteran's combined disability rating for each knee is greater than 20 percent.  38 C.F.R. § 4.26.  Therefore, Diagnostic Code 5003 does not provide an adequate basis for an increased disability rating.

The Veteran is not entitled to a disability rating in excess of 10 percent for either extremity under Diagnostic Code 5260.  In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran must manifest a flexion of 30 degrees or less.  The Veteran's range of motion was measured multiple times during the period of on appeal, and the Veteran's flexion was never measured to 30 degrees or less.  Therefore, Diagnostic Code 5260 does not provide an adequate basis for an increased disability rating.

The Veteran is not entitled to a disability rating in excess of 10 percent for either extremity under Diagnostic Code 5261.  In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran must manifest an extension of 15 degrees or more.  The Veteran's extension was measured multiple times during the period on appeal, and the Veteran's extension was never measured to 15 degrees or more.  Therefore, Diagnostic Code 5261 does not provide an adequate basis for an increased disability rating.

In evaluating disabilities of the musculoskeletal system however, 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.  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.  Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.

Nevertheless, the Veteran has not manifested additional functional loss sufficient to warrant an increased disability rating.  The Board notes that during an October 2008 VA examination, the Veteran claimed that she manifested pain, fatigue, weakness, and lack of endurance and coordination after repetitive movement as well as during flare-ups which occur regularly.  The Veteran, however, was able to complete repetitive range of motion testing without additional loss of range of motion during that same examination.  Additionally during an October 2017 examination, the Veteran was able to perform three repetitions of range of motion testing without additional loss of range of motion, and muscle strength testing revealed normal muscle strength.  Therefore, the Veteran is not manifesting additional functional loss sufficient to warrant an increased disability rating.

Here, the weight of the probative evidence of record simply demonstrates that the Veteran has manifested residual painful motion of her healed and previously service-connected stress fractures of the lower bilateral extremities.  Therefore, the evidence in this case is evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Unfortunately, the Veteran does not meet the criteria for a disability rating in excess of 10 percent.  As such entitlement to compensable disability ratings for the Veteran's stress fractures of the bilateral lower extremities is granted, and a disability rating in excess of 10 percent for either condition is denied.





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ORDER

A disability rating of 10 percent for stress fractures of the lower left extremity is granted; subject to the laws and regulations governing the payment of monetary benefits.

A disability rating of 10 percent for stress fractures of the lower right extremity is granted; subject to the laws and regulations governing the payment of monetary benefits.


REMAND

Acquired Psychiatric Disorder

The Veteran contends that he is entitled to a disability rating in excess of 50 percent for an acquired psychiatric disorder prior to March 17, 2014.  The Board previously evaluated the Veterans claim for an increased disability rating from June 2008 to present.  The Board finally disposed of the case by assigning a disability rating of 50 percent prior to March 17, 2014 and assigning a total disability rating thereafter.  

The Veteran appealed, and, in October 2017, the Court vacated the Board's determination and remanded the matter for further consideration.  Specifically, the Court reviewed the substance of a March 2014 VA treatment record opining that the Veteran manifested an incredible level occupational and social impairment, and the Court concluded that March 2014 treatment record also suggested that the high level of occupational and social impairment predated the March 2014 VA treatment record.  Consequently, the Court vacated the Board's decision in part, and remanded the matter for the Board to explain whether or not the Veteran was entitled to a total disability rating for her acquired psychiatric disorder prior to March 17, 2014.  Based on the Court's directions, the Board finds that it is necessary to provide the Veteran with a VA examination in order to discuss the severity of the Veteran's acquired psychiatric disorder, and whether the Veteran is entitled to a total disability rating prior to March 17, 2014.
TDIU & SMC

The Veteran contends that he is entitled to TDIU and SMC.  The Board finds that TDIU and SMC are inextricably intertwined with the above issue, and these issues must be remanded as well.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation).

Accordingly, the case is REMANDED for the following action:

1.  Arrange to provide the Veteran with a VA examination in order to answer the following questions:

1a.  Did the Veteran manifest occupational and social impairment with deficiencies in most areas from June 25, 2008 to March 17, 2014?  Why or why not?  If so, did the Veteran manifest this level of occupational impairment over this entire period or a portion of it?  Why?

1b.  Did the Veteran manifest total occupational and social impairment from June 25, 2008 to March 17, 2014?  Why or why not?  If so, did the Veteran manifest this level of occupational impairment over this entire period or a portion of it?  Why?

2.  Then, readjudicate the claim on appeal.  If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs