Citation Nr: 20021569 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-36 951 DATE: March 26, 2020 ORDER Entitlement to disability ratings in excess of 10 percent for bilateral tibia stress fractures is denied. FINDINGS OF FACT The preponderance of the evidence shows that the Veteran’s right and left tibia fractures are not manifested by nonunion of the tibia and fibula; malunion of the tibia and fibula with at least moderate knee or ankle disability; ankylosis; symptomatic removal of semilunar cartilage; dislocated semilunar cartilage; genu recurvatum; or limitation of flexion of the leg to 30 degrees or limitation of extension of the leg to 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a right tibia stress fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a. 2. The criteria for an initial disability rating in excess of 10 percent for a left tibia stress fractures are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1977 to August 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to disability ratings in excess of 10 percent for bilateral tibia stress fractures. The Veteran’s service-connected bilateral stress fractures are currently rated as 10 percent disabling under DC 5262, effective February 7, 2012. 38 U.S.C. § 4.71a. The Veteran contends that his symptoms are productive of higher ratings. As the evidence and analysis for the issues of entitlement to an increased rating for the Veteran’s service-connected left and right tibia stress fractures are largely similar; the two claims shall be discussed together as bilateral shin splints. Under DC 5262, a 10 percent disability rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent disability rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum schedular 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. Id. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The terms "slight," "moderate," and "marked" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Veteran was provided a VA examination for knee and lower leg conditions in December 2019. The examiner diagnosed with bilateral shin splints including tibia stress fractures. The Veteran reported severe chronic pain and the inability to walk or stand long without pain. The Veteran reported that he can only walk a mile without pain. The examiner found normal range of motion in both the Veteran’s knees with no pain noted upon examination. The examiner found flexion from 0 to 140 and extension from 140 to 0 degrees. The examiner found no evidence of pain with weight bearing; localized tenderness or pain on palpation; and no evidence of crepitus. The examiner found that the Veteran was able to perform repetitive use testing without additional function loss or range of motion loss. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran did not report flare-ups. The examiner found normal muscle strength, no muscle atrophy, and no ankylosis of the knee and lower leg. The examiner found no history of recurrent subluxation, lateral instability, or recurrent effusion. The performed joint stability testing and found no joint instability bilaterally. The examiner found that the Veterans bilateral shin splints and stress fractures of the tibia do not affect range of motion of the knee or ankle. The examiner found that the Veteran’s tibias were totally within normal limits and the tuning fork test was totally within normal limits. The examiner found that the Veteran does not have a meniscus condition. The Veteran did not report any surgical procedures. The examiner found that the Veteran’s conditions do not impact his ability to perform any type of occupational task. The Veteran was provided a VA examination for knee and lower leg conditions in June 2019. The Veteran was diagnosed with bilateral stress fractures of the tibia. The Veteran reported chronic pain and the inability to walk more than a mile without pain. The examiner did not perform range of motion testing. The examiner found no evidence of pain with weight bearing; localized tenderness or pain on palpation; and no evidence of crepitus. The examiner found that the Veteran was able to perform repetitive use testing without additional function loss or range of motion loss. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The Veteran did not report flare-ups. The examiner found normal muscle strength, no muscle atrophy, and no ankylosis of the knee and lower leg. The examiner found normal muscle strength, no muscle atrophy, and no ankylosis of the knee and lower leg. The examiner found no history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner did not perform joint stability testing. The examiner found that the Veterans bilateral stress fractures of the tibia do not affect range of motion of the knee or ankle. The examiner found no objective findings regarding the Veteran’s stress fractures. The examiner found that tuning fork testing was negative bilaterally. The examiner found that the Veteran does not have a meniscus condition. The Veteran did not report any surgical procedures. The examiner found that the Veteran’s conditions do not impact his ability to perform any type of occupational task. The Veteran was also provided a VA examination for muscle injuries in March 2019. The examination was requested to further address the Veteran’s bilateral tibia disorder. The examiner found no current or prior diagnosis for a muscle injury or condition. The examiner found bilateral knee range of motion and repetitive-use range of motion to be normal and without evidence of pain, tenderness, weakness, fatigue, or lack of endurance. The examiner found no evidence of non-weightbearing pain or passive range of motion pain. The Veteran was provided a VA examination for knee and lower leg conditions in December 2013. The examiner diagnosed the Veteran with bilateral stress fractures, shin splints, and degenerative changes. The Veteran reported that flare-ups impact the function of the knee or lower leg. The Veteran stated that he experiences more pain in fold weather. The Veteran reported that he gets anterior tibial ridge pain after standing on a hard surface for 8 hours causing him to alternate between sitting and standing. The examiner found no limitation of motion of extension or flexion bilaterally. The Veteran also found no objective evidence of pain on motion bilaterally. The examiner found that the Veteran was able to perform repetitive use tests without additional limitation in range of motion. The examiner noted that the Veteran had functional loss due to interference with sitting, standing, and weightbearing. The examiner found that pain, weakness, fatigability, or incoordination do not significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiner noted pain to palpation over both tibial ridges (anterior). The examiner found normal muscle strength and normal stability. The examiner found no evidence of recurrent patellar subluxation/dislocation, chronic exertional compartment syndrome, genu recurvatum, leg length discrepancy, or meniscal condition. The examiner found shin splints and stress fractures bilaterally. The examiner noted degenerative arthritis documented by imaging tests. The examiner found that the Veteran’s condition did not impact his ability to work. The Board also notes that nothing in the records shows the Veteran’s adverse symptomatology to be worse than what was reported at the above VA examinations. Based on the foregoing evidence, the Board finds that, under Diagnostic Code 5262, ratings in excess of the current 10 percent evaluations for the Veteran’s bilateral tibia stress fractures are not warranted. See 38 C.F.R. § § 4.7, 4.71a, Diagnostic Code 5262. As discussed above, the Veteran is currently rated under at 10 percent for malunion of the tibia and fibula with slight knee or ankle disability. The evidence of record does not show nonunion of the tibia and fibula with loose motion, requiring a brace, as needed for a 40 percent rating under Diagnostic Code 5262. The evidence also does not indicate that the Veteran has a moderate or marked knee disability as required for a 20 or 30 percent disability rating for malunion of the tibia and fibula under Diagnostic Code 5262. While the record indicates that the Veteran experiences severe and chronic pain from his bilateral tibia stress fractures, the record does not show that the Veteran has reduced range of motion, instability, subluxation, dislocation, or other evidence supporting a finding of a moderate or marked knee or ankle disability. Therefore, the Board finds that the Veteran’s symptoms are commensurate with a slight knee disability; and without more severe manifestations a rating in excess of 10 percent under Diagnostic Code 5256 is inapplicable. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of limitation of flexion of the leg to 30 degrees or limitation of extension of the leg to 15 degrees; no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; no evidence of symptomatic removal of semilunar cartilage under Diagnostic Code 5259; no evidence of dislocated semilunar cartilage with frequent locking pain and effusion to warrant a rating under Diagnostic Code 5258, and; no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. 38 C.F.R. § § 4.7, 4.71a. While the Veteran has reported experiencing pain due to his bilateral tibia fractures (the basis of the 10% rating), the medical findings are clear for any underlying neurological abnormalities. Thus, the Board finds that a separate rating for neurological manifestations, is also not warranted. Thus, while the Veteran believes a higher disability is warranted, the evidence of record, including the December 2019 examination report, does not support a disability rating in excess of 10 percent. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Again, it is important for the Veteran to understand that the medical findings provide highly probative evidence against the claim that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran’s belief that his disability warrants a higher disability rating and provide a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. This does not suggest, in any way, that the Veteran is not having problems with the above disabilities. It is these problems that are the basis of the current ratings. Accordingly, the Board finds the preponderance of the evidence shows that the Veteran’s right and left tibia fractures are not manifested by nonunion of the tibia and fibula; malunion of the tibia and fibula with at least moderate knee or ankle disability; ankylosis; symptomatic removal of semilunar cartilage; dislocated semilunar cartilage; genu recurvatum; or limitation of flexion of the leg to 30 degrees or limitation of extension of the leg to 15 degrees. Therefore, the Board finds that the criteria for a higher rating are not met. See 38 C.F.R. § 4.71a; Fenderson, supra. While the Board acknowledges the Veteran has significant problems as a result of his bilateral tibia fractures, the evidence of record does not indicate that the Veteran meets the rating criteria for a higher evaluation. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. E. VanValkenburg, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.