Citation Nr: 1819786 Decision Date: 04/02/18 Archive Date: 04/12/18 DOCKET NO. 09-01 899 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals. 2. Entitlement to a disability rating in excess of 30 percent for right proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 20, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran had active military service from November 1980 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Montgomery, Alabama. This matter was previously before the Board in October 2014, during which the Board denied the claims on appeal. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In August 2015, the Court granted the parties' Joint Motion for Remand, and vacated the Board's October 2014 decision before returning the case to the Board. Upon receipt of the case from the Court, the Board in October 2015 remanded the entire matter back to the RO for further development of the record. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). After carrying out the development as directed in the remand, the RO in a January 2018 rating decision granted a 30 percent evaluation for both the left and right tibia stress fractures with compartment syndrome, effective June 11, 2007, the date of the Veteran's original claim for an increased rating. As this decision did not represent a full grant of benefits on appeal, the case was returned to the Board for its further adjudication. With regards to the TDIU claim, the RO in its January 2018 rating decision found that TDIU was moot due to the fact that the Veteran was already in receipt of a 100 percent permanent evaluation for a mood disorder, effective December 20, 2011. The RO further elaborated that the Veteran in his application for entitlement to TDIU, received by the RO in June 2017, noted that he last worked as a truck driver on June 9, 2013; that is, after he was found to be 100 percent disabled by virtue of his service-connected mood disorder. In addition, the RO detailed that the Veteran was also in receipt of special monthly compensation at the housebound rate from December 20, 2011 on account of having additional service-connected disabilities independently ratable at 60 percent, pursuant to 38 U.S.C.A. § 1114 (s) and 38 C.F.R. § 3.350(i), and so TDIU was also not applicable on this basis either. See Bradley v. Peake, 22 Vet. App. 280 (2008) (TDIU can still be established for a separate disability for the purposes of qualifying for special monthly compensation even if the Veteran already has a schedular total rating for a different disability). While the Board agrees that the issue of TDIU is moot from the date of December 20, 2011, the Veteran has asserted that his bilateral lower leg disabilities have precluded him from securing and maintaining substantially gainful employment during the entire period of the appeal. Therefore, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), VA must still address the issue of entitlement to TDIU from the date of the original claim for increased rating through to December 20, 2011. FINDINGS OF FACT 1. During the entire pendency of the appeal, the left knee manifestations of the left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals were of marked severity, but there was no evidence of nonunion of the tibia and fibula with loose motion, requiring a brace. 2. During the entire pendency of the appeal, the Veteran's left ankle manifestations of the left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals resulted in pain and a limited range of motion with dorsiflexion ranging from five to 10 degrees and plantar flexion ranging from 15 to 30 degrees and no ankylosis. 3. During the entire pendency of the appeal, the right knee manifestations of the right proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals were of marked severity, but there was no evidence of nonunion of the tibia and fibula with loose motion, requiring a brace. 4. During the entire pendency of the appeal, the Veteran's right ankle manifestations of the left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals resulted in pain and a limited range of motion with dorsiflexion ranging from five to 10 degrees and plantar flexion ranging from 15 to 30 degrees and no ankylosis. 5. Prior to December 20, 2011, the Veteran's service-connected disabilities did not prevent him from securing and following all forms of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for left knee manifestations of a left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2017). 2. The criteria for a separate disability rating of 10 percent, but no more, for moderate left ankle limitation of motion have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5271 (2017). 3. The criteria for a rating in excess of 30 percent for left knee manifestations of a left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261, 5262 (2017). 4. The criteria for a separate disability rating of 10 percent, but no more, for moderate left ankle limitation of motion have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.321, 4.71a, Diagnostic Code 5271 (2017). 5. The criteria for a TDIU rating on a schedular basis prior to December 20, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran seeks entitlement to a higher evaluation for bilateral lower leg disabilities, characterized as left and right proximal tibia stress fractures with compartment syndrome, status post fasciotomy residuals. Historically, the Veteran's bilateral lower leg disabilities have been evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5262, which pertains to impairment of the tibia and fibula. Without remarking on the applicability of any other diagnostic codes in addition to the currently assigned ratings pursuant to Diagnostic Code 5262, as that is addressed further below, the Board notes that the Veteran's bilateral lower leg disabilities stem from documented stress fractures of the left and right tibia, and thus Diagnostic Code 5262 is appropriate for rating the symptomatology that the record illustrates has derived from that in-service injury. Under Code 5262 a 30 percent rating is assigned when there is malunion of the tibia and fibular with marked ankle disability. The maximum assignable rating under that code is 40 percent, for nonunion of the tibia and fibula with loose motion, requiring a brace. On the report of the July 2017 knee examination conducted pursuant to the Board remand, the examiner noted the Veteran's recent diagnosis of and treatment for compartment syndrome bilaterally, and remarked that the bilateral compartment syndrome was attributable to the residuals of the in-service bilateral tibia stress fracture. With that established, the examiner recorded that the Veteran reported experiencing sharp throbbing pain and swelling in both knees, with flare-ups of increased pain and swelling resulting in reduced range of motion in the bilateral knees. Range of motion testing revealed flexion and extension reduced to 100 degrees bilaterally, with pain noted during weight bearing but no tenderness or crepitus. After repetitive use, the flexion and extension were reduced to 80 degrees bilaterally. The examiner also noted that pain and lack of endurance contributed to loss of functional ability, such that range of motion was reduced to 70 degrees bilaterally. Further testing revealed no instability or ankylosis. Upon conclusion of the physical examination, it was the examiner's impression that the knee symptomatology resulted in a reduction of functional abilities in the form of limited range of motion, difficulty with bending or climbing stairs as well as impairment in standing or walking for prolonged periods of time. The examiner also noted that too much muscle stimulation could lead to more compartment syndrome. The examiner concluded by noting that there was no evidence of nonunion on X-ray examination, although there was objective evidence of pain on passive range of motion and on non-weight bearing testing of the knees bilaterally. On the July 2017 ankle examination report, the Veteran reported experiencing dull pain and stiffness in his bilateral ankles, with flare-ups of additional pain and stiffness. Range of motion testing showed dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees, bilaterally, with pain on weight bearing noted in both ankles. After repeated use dorsiflexion was reduced to five degrees while plantar flexion was reduced to 20 degrees, again bilaterally. The examiner also noted that pain and lack of endurance contributed to loss of functional ability, such that plantar flexion was further reduced to 15 degrees bilaterally. No tenderness, crepitus, ankylosis, or instability was noted, but the examiner did specify that the Veteran experienced loss of muscle strength in both ankles as due to the claimed condition. After completing the physical examination, it was the examiner's impression that the ankle symptomatology resulted in impairment in standing or walking for prolonged periods of time. The examiner concluded by noting that there was objective evidence of pain on passive range of motion and on non-weight bearing testing of the ankles bilaterally. A review of private and VA medical records pertaining to the period of time on appeal show continued treatment for bilateral lower leg pain, characterized as both knee and ankle pain. More recently, private records from a Dr. T.C. show diagnosis of and treatment for compartment syndrome bilaterally beginning in 2016, with surgery administered on both lower legs. Upon consideration of the record, the Board finds that an evaluation in excess of 30 percent for left and/or right proximal tibia stress fractures with compartment syndrome, status post fasciotomy residuals, pursuant to Diagnostic Code 5262 is not warranted. Under Diagnostic Code 5262, the maximum rating that can be assigned is 40 percent disabling. At no point during the period on appeal has the Veteran alleged, or the evidence demonstrated, that there was nonunion of the tibia and fibula, with loose motion, requiring a brace; thus, a rating in excess of 30 percent for either the left or right lower leg disabilities under Diagnostic Code 5262 cannot be assigned. Although it has been established that a rating in excess of 30 percent under Diagnostic Code 5262 is not warranted, the Board acknowledges that Diagnostic Code 5262 specifies that the evaluation of a tibia injury is to be based upon the degree of severity of the associated knee or ankle disability. A review of the RO's January 2018 rating decision does not clearly delineate whether the 30 percent rating bilaterally encompassed either the knee or ankle disability, and so, granting the Veteran the benefit of the doubt, the Board finds that he is entitled to a separate rating for the unaccounted-for manifestations of his tibia injury residuals, be they either present in the knees or ankles, with the separate rating to be assigned for whichever bilateral joints result in the higher rating. With that being said, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Limitation of motion of the ankle is rated pursuant to Diagnostic Code 5271, which provides for a 20 percent rating for marked limitation of motion and a 10 percent rating for moderate limitation of motion. The words marked and moderate are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Limited of motion of the knees is rated pursuant to Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, corresponding to limitation of flexion in the leg, a noncompensable rating is assigned when flexion is limited to 60 degrees, while a 10 percent rating is assigned when flexion is limited to 45 degrees, a 20 percent rating is assigned when flexion is limited to 30 degrees, and a 30 percent rating is assigned when flexion is limited to 15 degrees. Under Diagnostic Code 5261, corresponding to limitation of extension in the leg, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, a 20 percent rating is assigned when extension is limited to 15 degrees, a 30 percent rating is assigned when extension is limited to 20 degrees, a 40 percent rating is assigned when extension is limited to 30 degrees, and a 50 percent rating is assigned when extension is limited to 45 degrees. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The VA General Counsel held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23- 97. That being said, there is no consistent evidence that the Veteran experiences lateral instability in either leg as due to his left lower leg disabilities, although slight instability was noted on the April 2012 VA examination; thus, the Board will not address whether he would be entitled to a separate rating for instability of either knee pursuant to 5257. Furthermore, there is also no evidence that the Veteran experiences ankylosis in either knee (Diagnostic Code 5256), dislocation of semilunar cartilage (5258), or genu recurvatum (5263), and thus the evaluation of these conditions will not factor into the Board's analysis of the proper evaluation for the bilateral lower leg disabilities. After comparing the possible evaluations for limitation of the knees and ankles, the Board finds that utilizing the criteria for the manifestations of impairment in the knees does support the finding of marked disability bilaterally, thus warranting the 30 percent rating under 5262; however, the record does not support more than a 10 percent rating for the bilateral ankle manifestations. With regards to the bilateral knee manifestations, the Board acknowledges that none of the VA examinations afforded to the Veteran during the pendency of the appeal showed range of motion testing results of greater severity than would warrant a rating in excess of 10 percent for the right knee and 20 percent for the left knee under either Diagnostic Codes 5260 and 5261. That being said, there is further evidence that the bilateral knee manifestations were more severe in nature. VA medical records dating as early as June 2007 show that the Veteran sought treatment for chronic knee pain, and he reported during the September 2007 VA examination that he could only stand for a few minutes and could only walk for a few yards at a time, which he attributed to his knee symptomatology. Moreover, on the September 2007 examination the Veteran reported that during flare-ups, which occurred daily and lasted for hours at a time, his functioning was limited by 90 percent. The September 2007 examiner commented that the bilateral knee manifestations resulted in decreased mobility, problems with lifting and carrying, weakness, fatigue, decreased lower extremity strength, and severe chronic pain. Similarly, the April 2012 VA examiner determined that the bilateral knee manifestations resulted in less movement, weakened movement, incoordination, pain, swelling, instability, disturbance of locomotion, interference with sitting ,standing, and weight-bearing, as well as popping and clicking of the knees. This degree of impairment is also reflected in the Veteran's VA medical records, which show that he continued to seek treatment for his knee pain through the pendency of the appeal and further reported significant difficulty with ambulation. In summation, although the Veteran's knees were never shown to exhibit the degree of limitation of range of motion necessary for a 30 percent rating, he has consistently reported experiencing significant impairment of function that is far more severe than the range of motion testing results indicate. This undoubtedly reflects the additional impairment attributable to the tibia stress fracture itself, which is intended to be compensated for by the diagnostic criteria for Code 5262. Therefore, in light of the long history of complaints of bilateral knee symptomatology and the reports of severe impairment of the bilateral lower legs, the Board finds that the 30 percent rating encompasses the marked severity of the Veteran's bilateral knee manifestations, with full consideration of the functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness exhibited in the bilateral knees. DeLuca, 8 Vet. App. at 202. As for the ankle disability manifestations, the record does not support that the limitation of ankle motion is more than moderate bilaterally, thus corresponding to a 10 percent rating. The Veteran's ankles have only been examined on one occasion, that being the July 2017 VA examination, which showed dorsiflexion limited to 10 degrees and plantar flexion limited to 30 degrees, bilaterally. That range of motion was further reduced to 5 degrees of dorsiflexion and 15 degrees of plantar flexion bilaterally during flare-ups. Although these measurements do reflect some loss of range of motion, there is no indication from the record that his ankle disability was anything more than moderate in severity. Indeed, the first documentation of the Veteran having received any treatment for ankle symptomatology is in a November 2015 VA outpatient record, which shows that the Veteran complained of right ankle pain and edema. Moreover, on the July 2017 examination the Veteran reported only symptoms of pain and stiffness, and none of the instability or additional impairment that would warrant a finding that the ankle manifestations were of marked severity. The Board notes that this precludes assignment of any additional separate ratings on the basis of other potentially applicable rating codes. 38 C.F.R. § 4.71a, DC 5270, 5272, 5273, 5274. However, the RO in its January 2018 decision assigned a 30 percent rating bilaterally under Diagnostic Code 5262 for the entire period of the appeal, and referred to indications of both ankle and knee pain in justifying that 30 percent evaluation. As discussed, the currently assigned 30 percent rating can only encompass the manifestations of either the knee or ankle, and as such, the bilateral ankle impairment acknowledged by the RO to have existed during the entire pendency of the appeal must be accounted for separately. Thus, granting the Veteran the benefit of the doubt, the Board finds that a separate disability rating of 10 percent bilaterally, but no more, for moderate limitation of ankle range of motion is warranted pursuant to Diagnostic Code 5271. A separate rating of 20 percent, however, is not warranted, as the evidence does not show that the Veteran exhibited marked limitation of motion and he did not report additional impairment stemming from his symptoms of pain and stiffness that would be commensurate with the marked limitation of motion necessary for a 20 percent rating. DeLuca, 8 Vet. App. at 202. TDIU prior to December 20, 2011 Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2015). From June 11, 2007 to December 20, 2011, the Veteran was service-connected for his left and right stress fracture residual conditions, both of which were evaluated as 30 percent disabling, now with additional 10 percent ratings for moderate limitation of each ankle range of motion. Under 38 C.F.R. § 4.16 (a), for purposes of having a disability ratable at 60 percent, disabilities resulting from common etiology will be considered as one disability. As the Veteran's bilateral stress fracture residual conditions arise from a common etiology, they are considered as one disability and the Veteran meets the schedular criteria for a TDIU as of June 11, 2007. With that being said, the Veteran must still demonstrate that his service-connected disabilities precluded him from securing and maintaining substantially gainful employment for the period prior to December 20, 2011. On his application for entitlement to TDIU, received by the Board in June 2017, he indicated that he ceased working full-time as a truck driver on June 9, 2013. The Veteran's self-report that he was working full-time during the entire period prior to December 20, 2011 obviates any need to evaluate whether his service-connected disabilities precluded him from securing and maintaining gainful employment, as it clearly demonstrates that he was working during this time as a truck driver and had been for several years. Accordingly, the Board finds that entitlement to TDIU is not warranted during the period prior to December 20, 2011. ORDER Entitlement to a rating in excess of 30 percent for left proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals, is denied. Entitlement to a separate 10 percent rating for a left ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent for right proximal tibia stress fracture with compartment syndrome, status post fasciotomy residuals, is denied. Entitlement to a separate 10 percent rating for a right ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. A TDIU prior to December 20, 2011 is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs