Citation Nr: 1811489 Decision Date: 02/23/18 Archive Date: 03/06/18 DOCKET NO. 13-01 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right leg condition, to include a knee condition. 2. Entitlement to service connection for a left leg condition, to include a knee condition. 3. Entitlement to an initial rating in excess of 10 percent for right ankle strain due to stress fracture. 4. Entitlement to an initial rating in excess of 10 percent for left ankle strain due to stress fracture. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 2001 to March 2002. This appeal is before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. Subsequent to certification of the case to the Board, new, pertinent medical evidence was received. In January 2018, the Veteran's representative waived initial agency of jurisdiction (AOJ) review of such evidence. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The Veteran has current bilateral leg neuropathy resulting from in-service injury. 2. Prior to May 17, 2011, the Veteran's right and left ankle strain disabilities more closely approximated "moderate" limitation of motion of the ankle than "marked" limitation. 3. Beginning May 17, 2011, the Veteran's right and left ankle strain disabilities have approximated marked limitation of motion of the ankle. CONCLUSIONS OF LAW 1. The criteria for service connection for right leg neuropathy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for left leg neuropathy have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for an initial rating in excess of 10 percent for right ankle strain due to stress fracture prior to May 17, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 4. The criteria for an initial rating in excess of 10 percent for left ankle strain due to stress fracture prior to May 17, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 5. The criteria for a rating of 20 percent for right ankle strain due to stress fracture beginning May 17, 2011, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). 6. The criteria for a rating of 20 percent for left ankle strain due to stress fracture beginning May 17, 2011, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As reflected in August and September 2010 statements, the Veteran asserts that he has had leg issues and leg pains since a 2002 in-service accident; in August 2002, his wife and mother submitted statements attesting to his leg pain, especially following activity. In his December 2012 substantive appeal, the Veteran identified his leg condition as a nerve condition resulting in cramping, pain, stiffness, and weakness. During his August 2017 Board hearing, the Veteran and his representative argued that the Veteran was asserting a neurological disability of his legs that had been diagnosed and was due to in-service injury. Service treatment records reflect that, beginning in December 2001, the Veteran complained of leg and various lower extremity pains, which continued in January, February, and March 2002, with numerous visits for medical treatment. A February 2002 3-phase bone scan revealed significant stress-related changes to the femurs, grade 2 stress fractures of the left tibia, shin splint on the right, and stress-related changes of the ankles bilaterally. On May 2002 podiatry evaluation, the Veteran's history was noted, and it was noted that treatments of anti-inflammatory medication, rest, physical therapy, and prescription orthotics had apparently made no lasting or significant improvement, as it appeared he had difficulties once he returned to his activity level. Regarding the Veteran's knees, no specific pathology has been noted on examination. November 2011 and June 2017 X-rays were noted to be normal with bones normal, no fracture identified, and normal joint spaces, alignment, and soft tissue shadows. However, on August 2017 diagnostic testing, the Veteran was noted to have had abnormal nerve conduction study (NCS) of the right lower extremity across the knee consistent with right peroneal neuropathy. On September 2017 private evaluation of the Veteran's lower extremity neurological complaints, he reported burning sensation and numbness in both legs. The examining physician noted review of service records beginning in December 2001 including his 3-phase bone scan showing grade 2 stress fracture of the left tibia and shin splint on the right and stress related changes in the ankles. The physician also noted a recent study showing right side peroneal neuropathy, which would explain his current symptoms in his right leg. On examination, sensation in the right lower extremity was decreased to light touch in his distal third of his anterior and lateral thigh, and he had loss of sensation in his lateral leg and decreased sensation through his leg from his mid leg to his foot. Left thigh sensation was intact, but he had decreased sensation from his mid leg down to his feet. The assessment was polyneuropathy. The examiner noted that the Veteran had normal labs for electrolytes, vitamin B12, and diabetes, and by examination and review of diagnostic testing he had neuropathy. The physician stated that the most likely etiology of his neuropathic symptoms was his traumatic injury in 2001, based on the information provided. Given the above, the Board finds the evidence of whether the Veteran has neuropathy of the legs related to service to be at least in relative equipoise. The Veteran has documented in-service leg problems and pathology, currently diagnosed bilateral leg neuropathy, and competent medical evidence of a nexus between them. There is no competent evidence, such as a medical opinion, weighing against the opinion of the September 2017 physician. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that he has current bilateral leg neuropathy resulting from in-service injury. Accordingly, service connection for right and left leg neuropathy is warranted. II. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate 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); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's left and right ankle strain is rated under Diagnostic Code (DC) 5271, which provides ratings based on limitation of extension of the ankle. Moderate limitation of motion of the ankle is rated 10 percent. Marked limitation of motion of the ankle is rated 20 percent. 38 C.F.R. § 4.71a. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In this case, prior to May 7, 2011, an initial rating in excess of 10 percent for right or left ankle strain is not warranted. On April 2011 VA examination, the Veteran reported pain and stiffness in the ankles but no giving way, instability, weakness or incoordination, decreased speed of motion or episodes of locking. On examination, there was no abnormal weight bearing, ankle instability, or tendon abnormality. Range of motion testing revealed 0 to 15 degrees dorsiflexion and 0 to 40 degrees plantar flexion for each ankle, with objective evidence of pain with motion. X-rays showed normal ankles. Such evidence reflects bilateral disability with dorsiflexion and plantar flexion each reduced by 5 degrees with pain and stiffness. The Board finds that this disability as whole more closely approximated "moderate" limitation of motion of the ankle than "marked" limitation during this period. A May 17, 2011, private treatment note reflects that the Veteran had decreased stride and generally antalgic gait with minimal heel strike and minimal toe-on toe-off. Range of motion testing of the right and left ankles revealed 40 and 42 degrees active planter flexion and 0 and 3 degrees active dorsiflexion, bilaterally. Ankle range of motion was noted to have been limited by painful end feel; it was noted that the Veteran appeared to give solid effort. On August 2015 VA examination, the Veteran reported ankle pain with flare-ups during which he had severe burning sensation mid shins and also noticed swelling. There was evidence of pain with weight-bearing and localized tenderness or pain on palpation of the joint or associated soft tissue. On range of motion testing, dorsiflexion was 0 to 15 degrees and plantar flexion was 0 to 25 degrees bilaterally, with pain not resulting in additional functional loss. The Veteran was able to perform repetitive testing with no additional loss of range of motion, and it was noted that pain, weakness, fatigability or incoordination would not significantly limit functional ability with repeated use over a period of time. Strength was full in plantar flexion and dorsiflexion bilaterally. There was no joint instability, and the Veteran did not use any assistive devices for ambulation. It was assessed that the Veteran had chronic bilateral ankle pain and reduced range of motion that would limit him from standing and walking for a prolonged period, and limit him in climbing ladders and stairs and faster pace walking. Resolving reasonable doubt in the Veteran's favor, the Board finds that 20 percent ratings are warranted for the Veteran's right and left ankle disabilities beginning May 17, 2011. This is the date of the treatment note first showing increased symptoms, including reduced range of ankle motion from the prior VA examination and abnormal gait. The August 2015 VA examination continued to reflect such increased symptoms, with increased range of motion limitation and evidence of pain with weight-bearing. Dorsiflexion on August 2015 examination continued to be limited by only 5 degrees, and there was no loss of muscle strength with motion. However, considering the Veteran's ankle symptoms and functional impairment as a whole, and resolving reasonable doubt in his favor, the Board finds that his ankle disability has reasonably approximated the criteria of marked limitation of motion of the ankle contemplated in the maximum 20 percent rating under DC 5271 during this period. Finally, in an April 2015 written brief, the Veteran's representative stated that the Veteran "also reported symptoms of tenderness, stiffness and swelling with regard to his ankles, as well as loss of motion and movement due to pain, fatigue and weakness with flare ups and incapacitating episodes not fully acknowledged by VA examination, warranting a rating in excess of 10 percent, separately rated 10 percent each, currently." However, while giving this general statement, it did not point to any evidence in the record of symptoms that existed and were not addressed or considered on the April 2011 VA examination. As discussed above, the Veteran's reported symptoms, and symptoms he denied, were noted by the April 2011 VA examiner. Accordingly, prior to May 17, 2011, initial ratings greater than 10 percent for right and left ankle strain due to ankle fracture are not warranted, and ratings of 20 percent are warranted for such disabilities beginning May 17, 2011. ORDER Service connection for right leg neuropathy is granted. Service connection for left leg neuropathy is granted. An initial rating in excess of 10 percent for right ankle strain due to stress fracture prior to May 17, 2011, is denied. An initial rating in excess of 10 percent for left ankle strain due to stress fracture prior to May 17, 2011, is denied. A rating 20 percent for right ankle strain due to stress fracture beginning May 17, 2011, is granted, subject to the laws and regulations controlling the award of monetary benefits. A rating 20 percent for left ankle strain due to stress fracture beginning May 17, 2011, is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs