Citation Nr: 20022540 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 14-19 218 DATE: April 1, 2020 ORDER Prior to March 14, 2013, an initial compensable evaluation for residuals of a left tibia stress fracture is denied. From March 14, 2013, a disability rating in excess of 10 percent for residuals of a left tibia stress fracture is denied. Prior to March 14, 2013, an initial compensable evaluation for residuals of a right tibia stress fracture is denied. From March 14, 2013, a disability rating of 10 percent (but no higher) for residuals of a right tibia stress fracture is granted. FINDINGS OF FACT 1. Prior to March 14, 2013, the Veteran’s residuals of right and left tibia stress fractures manifested in pain that interfered with prolonged standing without malunion of the tibia or fibula and without knee or ankle disability. 2. From March 14, 2013, the Veteran’s residuals of right and left tibia stress fractures manifested in pain that interfered with prolonged standing and walking; at worst, bilateral knee flexion was limited to 70 degrees and extension of the right knee to 5 degrees with normal extension on the left; right ankle flexion was limited to 15 degrees with otherwise normal range of motion on the left and right. CONCLUSIONS OF LAW 1. Prior to March 14, 2013, the criteria for a compensable rating for residuals of a left tibia stress fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262. 2. From March 14, 2013, the criteria for a disability rating in excess of 10 percent for residuals of a left tibia stress fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262. 3. Prior to March 14, 2013, the criteria for a compensable rating for residuals of a right tibia stress fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262. 4. On and after March 14, 2013, the criteria for a 10 percent rating (but no higher) for residuals of a right tibia stress fracture are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1995 to October 1999. These matters come before the Board of Veterans’ Appeals (Board) from June 2012 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified before a Decision Review Officer at the RO. In April 2017, the Veteran testified at hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In February 2018, the Board remanded the claim for further development, to include scheduling the Veteran for additional VA examinations. Increased Ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Knee disabilities are rated under Diagnostic Codes (DCs) 5256 to 5263. 38 C.F.R. § 4.71a. DC 5256 relates to ankylosis of the knee. DC 5257 considers slight, moderate and severe recurrent subluxation or lateral instability. DC 5258 provides a rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 provides a rating for symptomatic removal of semilunar cartilage. DCs 5260 and 5261 consider limitation of flexion and extension of the leg. DC 5262 addresses impairment of the tibia and fibula. DC 5263 allows a rating for genu recurvatum. 38 C.F.R. § 4.71a. Pursuant to the rating schedule, an evaluation of 10 percent is warranted if the record shows recurrent subluxation or lateral instability of the knee which is slight, symptomatic removal of semilunar cartilage, for flexion limited to 45 degrees or extension limited to 10 degrees, or for malunion of the tibia and fibula with slight knee or ankle disability. See DCs 5257, 5259, 5260, 5261, 5262. A higher evaluation of 20 percent is not warranted unless there is evidence of moderate subluxation or lateral instability of the knee or flexion limited to 30 degrees or extension limited to 15 degrees; or, there is cartilage, semilunar, dislocated with frequent episodes of “locking,” pain and effusion to the joint, or malunion of the tibia and fibula with moderate knee or ankle disability. See DCs 5257, 5258, 5260, 5261, 5262. A higher evaluation of 30 percent is not warranted unless there is severe recurrent subluxation or lateral instability, or for flexion limited to 15 degrees or extension limited to 20 degrees, or malunion of the tibia and fibula with marked knee or ankle disability. See DCs 5257, 5260, 5261, 5262. Under DC 5260, an evaluation of 40 percent is warranted for extension limited to 30 degrees and an evaluation of 50 percent is warranted for extension limited to 45 degrees. Under DC 5262, a maximum evaluation of 40 percent is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 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. With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274, set forth relevant provisions. DC 5270 evaluates ankylosis of the ankle and DC 5272 evaluates ankylosis of the subastragalar or tarsal joint. DC 5273 and 5274 address when a veteran suffers from malunion of the os calcis or astragalus, or has undergone an astragalectomy or removal of the talus bone. DC 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion and a 20 percent rating is assigned for marked limitation of motion. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran’s residuals of a stress fracture for the left and right tibia are currently evaluated under the criteria of DC 5262, for impairment of the tibia. Notably, the Veteran is also service connected for right knee strain and receives a 10 percent rating under DC 5257 that addresses lateral subluxation and instability. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (DC 5260), limitation of extension (DC 5261), lateral instability or recurrent subluxation (DC 5257), and meniscal conditions (DCs 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Turning to the evidence, the Veteran filed a claim for service connection for shin splints in September 2010. He presented to a VA Knee and Lower Leg Conditions examination in November 2011. He received diagnoses of stress fractures in the right and left tibia. The Veteran described pain in both anterior lower legs attributed to running with worse pain on the right. He denied flare-ups. Range of motion of the knees was normal without functional loss in either the left or right lower extremities. Tenderness was not noted, and muscle strength was normal. The Veteran used shoe orthotics occasionally for shin splints. Ankylosis was not present. He underwent another examination in December 2011 after the examiner reviewed the claims file. He noted an ache developed in both legs if he walked just a few steps and that standing increased the ache temporarily. He noted an occasional throbbing in both lower legs for a short time at night as well. Range of motion of both knees was normal, although there was interference with sitting, standing and weight-bearing. A bone scan was ordered, and the results showed bilateral periostitis compatible with shin splints. Ankylosis was not present. In a June 2012 rating decision, the RO granted noncompensable evaluations in the absence of malunion of the tibia and fibula with slight knee or ankle disability. In his July 2012 notice of disagreement, the Veteran indicated he was required by his doctor to wear a left leg brace every day and take salsalate to control his pain. He reported wearing orthotics in his shoes daily to help keep his balance. Treatment records show complaints of chronic anterior leg pain bilaterally. In the August 2012 rating decision, the noncompensable rating was continued for the right tibia. In February 2013, the Veteran appealed. At his February 2013 hearing before a Decision Review Officer, the Veteran stated he had to wear braces on both of his legs because of the pain he experienced. In March 2013, he presented for an additional VA examination. The Veteran described flares with kneeling, prolonged walking or standing. He indicated being woken up at night by sharp pain. Bilateral knee flexion was to 70 degrees with normal extension. Following 3 repetitions, bilateral knee flexion was to 65 degrees. Less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion and interference with sitting, standing and weight-bearing were noted to cause functional loss. Pain was noted to palpation. Regular use of knee braces was recognized. Muscle strength testing of knee flexion and extension was 4/5. He indicated that it was “getting harder and harder to walk” and it was getting harder to lift his left leg getting into the bathtub. It was noted the Veteran walked slowly and carefully and limped on the right. It was noted he had difficulty sitting and rising from his chair and on and off of the examination table. Ankylosis was not present. In the May 2013 statement of the case, the RO increased the rating for the Veteran’s left tibia to 10 percent based on painful motion of the knee and malunion of the tibia with slight knee or ankle disability with objective evidence of periostitis effective the date of the March 2013 examination. The noncompensable evaluation was continued for the right tibia in recognition of slight muscle disability. At his April 2017 hearing before the Board, the Veteran indicated it was very difficult for him to walk and that he wore special shoes with orthotics. He stated he walked for exercise, but it was not easy because of his leg pain. He could not stand for prolonged periods. He stated he could not stretch his legs out as normal or bend down and getting up from the ground was difficult. He stated he was taking medications for the pain he experienced in both his ankles and his knees. He explained the pain was mostly above the ankle and in the general area of the shins. In February 2018, the Board remanded the claim to afford the Veteran an examination of his ankles and another, more recent, examination for his knees. In July 2019, the Veteran presented for another VA examination of his knees and lower legs. The examiner diagnosed osteoarthritis of the bilateral knees and shin splints (including tibia stress fracture and/or exertional compartment syndrome). It was noted that the bilateral knee arthritis was not a progression of the Veteran’s service-connected condition and is a separate and distinct disease process. The Veteran reported his right knee was getting worse and that he wore a brace on it consistently, but sometimes it popped painfully. He reported occasional stabbing pain in the left knee, but not as bad as the right knee. He explained that he joined a gym to try to lose some weight, but he now cannot walk further than 45 minutes at a time, stand longer than 10 minutes, run, kneel or squat. For the right knee, flexion was to 90 degrees and extension to 5 degrees with pain. Range of motion itself was not noted to contribute to functional loss. The pain noted on examination did not result in functional loss. For the left knee, flexion was to 120 degrees with normal extension without pain. Repetitive use did not lead to further limitation of range of motion. Muscle strength on the right was 4/5 and full on the left. Ankylosis was not present. Also, in July 2019, the Veteran presented for a VA Ankle Conditions examination. He stated his right ankle still felt stressed when he exerted himself, but it was better with a little weight loss. He stated driving for extended periods and getting in and out of cars was difficult. He related that the left ankle was not so bad and “mostly the muscle gets tight.” He noted being unable to run. For the right ankle, dorsiflexion was limited by 5 degrees to 15 degrees with normal plantar flexion. Pain was noted on examination that did not result in or cause functional loss. Mild tenderness was noted to the medial malleolus and tibiotalar joint. For the left ankle, range of motion was normal without pain. No additional range of motion loss was noted after repetitive use. Right ankle muscle strength was 4/5 with full strength in the left ankle. The examiner commented that the Veteran had difficult with prolonged walking and standing and with getting in and out of vehicles. He could not run, jump, climb or do other high impact activities. Ankylosis was not present. In an October 2019 rating decision, the RO increased the evaluation for the right tibia to 10 percent for shin splints with ankle disability effective the date of the April 2017 Board hearing. Upon review of the evidence, the Board finds that prior to the March 14, 2013 examination, the evidence was against a finding that the Veteran had malunion of the tibia or fibula with knee or ankle disability. The Veteran certainly experienced pain that interfered with prolonged standing and walking. However, the range of motion in his knees was normal and no ankle disability was evident. As of March 14, 2013, the evidence suggests the presence of at least slight knee disability in both knees. Flexion of the bilateral knees was limited to 70 degrees and to 65 degrees after repetitive use bilaterally and his condition affected walking, standing, running, kneeling and squatting. The Board finds that any doubt can be resolved in the Veteran’s favor to grant a 10 percent rating for the right tibia condition as the disability at that time was comparable to the condition on the left. Subsequent examination in 2019 indicated flexion to 90 degrees and extension limited to 5 degrees in the right knee with flexion to 120 degrees and normal extension in the left knee with slight limitation of dorsiflexion in the right ankle to 15 degrees with otherwise normal range of motion. Notably, compensable range of motion for the knee requires limitation of flexion to 45 degrees and extension to 10 degrees. This extent of disability was not demonstrated at any time during the appeal period and the Board finds that the evidence does not support a finding that any knee or ankle disability caused by the Veteran’s bilateral tibial conditions can be considered moderate. The Board has considered whether a higher rating prior to March 14, 2013 or after March 14, 2013 is warranted for either the left or the right tibial condition under an alternate diagnostic code and finds that it is not. As noted, the Veteran’s range of motion is noncompensable, ankylosis was not present at any examination and the Veteran does not have genu recurvatum or removal of semilunar cartilage or any of the ankle conditions referenced in DCs 5270, 5272, 5273 or 5274. In addition, a 5 degree loss of dorsiflexion in the right ankle at the July 2019 examination does not rise to the level of moderate limitation. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a 10 percent rating for either the right or left tibial condition prior to March 13, 2014, but doubt can be resolved in the Veteran’s favor as of March 14, 2013 for the right tibia. At no time during the appeal period has either tibial condition warranted a rating in excess of 10 percent, as malunion of the tibia or fibula with knee or ankle disability that can be considered moderate has not been shown and there are no other applicable diagnostic codes under which a higher rating could be granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Boyd Iwanowski, 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.