Citation Nr: 20032211 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 13-29 310 DATE: May 7, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected residuals of a tibia and fibula fracture with degenerative joint disease of the left knee is denied. REMANDED Entitlement to service connection for a right ankle disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for left leg neuropathy, to include as secondary to service-connected disabilities is remanded. FINDING OF FACT Residuals of the Veteran’s left tibia and fibula fracture, with degenerative joint disease is not productive of nonunion of the tibia and fibula with loose motion, requiring a brace. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for residuals of a left tibia and fibula fracture with degenerative joint disease in the left knee were not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.951, 4.1, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1948 to April 1956. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at an August 2018 Board hearing. The transcript of the hearing is of record. In March 2019, the Board remanded the case to the AOJ for additional development. The Board finds that there has been substantial compliance with the remand directives as to the issue decided in this case. Also, on remand, the AOJ in a September 2019 rating decision granted service connection for arthritis of the right knee and for scars of the left knee. In a December 2019 rating decision, the AOJ granted service connection for left ankle degenerative arthritis. These matter therefore, are no longer before the Board. 1. Increased rating for residuals of a left tibia and fibula fracture with degenerative joint disease of the left knee Disability evaluations 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). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40 , 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran’s service-connected left knee disability is rated pursuant to the provisions of Diagnostic Codes (DCs) 5010-5262 and assigned a 30 percent disability evaluation. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 5010-5262 reflects that the Veteran’s left knee disability is partially described as traumatic arthritis and that the rating assigned is based on impairment of the tibia and fibula under DC 5262. Under DC 5262, malunion of the tibia and fibula of a leg warrants a 20 percent rating requires for moderate knee or ankle disability. A 30 percent rating requires that malunion resulting in marked knee or ankle disability. Nonunion of the tibia and fibula warrants a 40 percent rating if there is loose motion requiring a brace. 38 C.F.R. § § 4.71a, DC 5262. The words slight, moderate, and severe are not defined in the VA Schedule for Rating Disabilities. Use of terminology such as “severe” by VA examiners and others, although an element to be considered by the Board, is not dispositive of the issue. Reference may be made to a general-purpose dictionary. See Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003). In September 2009, the Veteran underwent a VA examination. The examiner found the Veteran fractured his left tibia and fibula which later developed into degenerative joint disease. The examiner found the Veteran had left knee flexion of 0 to 100 degrees and normal left knee extension. In April 2015, the Veteran underwent another knee and lower leg VA examination. During the examination, the Veteran reported that had left leg and knee pain since his injury. The Veteran reported that he had an unsteady gait and fell due to his knee. The Veteran reported that he had flare-ups, which caused a pain level of 9 out of 10. The Veteran reported that he had difficulty walking for more than 10 to 15 minutes. Upon range of motion testing, the examiner found the Veteran had flexion of 0 to 90 degrees and extension of 140 to 5 degrees. The examiner found the Veteran’s knee pain could limit the Veteran’s range of motion. The examiner noted there was no objective evidence of localized tenderness or pain on palpation. The examiner found objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner noted that that there was additional functional loss due to factors of fatigue, weakness, and lack of endurance. The Veteran’s range of motion after three repetitions was 0 to 70 degrees flexion and 140 to 5 degrees extension. The examiner noted that the Veteran’s left knee was not tested after repetitive use over time or during a flare-up. The examiner was unable to state whether pain, weakness, fatiguability, or incoordination significantly limited functional ability during a flare-up or with repeated use over a period of time. The examiner noted the Veteran did not have muscle atrophy. The examiner found the Veteran did not have ankylosis. The Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner found no joint instability, shin splints, or meniscus condition. The Veteran underwent a VA examination in September 2019. The examiner found the Veteran had left knee joint osteoarthritis and left tibia and/or fibula fracture. During the examination the Veteran reported he had lower leg and knee pain since his original injury. The Veteran reported that he had left leg and knee pain of 9 out of 10. The Veteran reported fare-ups, and the flare-ups caused more pain, which had gotten worse in the last few years. The Veteran stated he had functional loss. The Veteran stated that he used wheelchair for longer distances, a walker for mid-distances, and a cane for shorter distances. Upon range of motion testing, the Veteran had 10 to 70 degrees flexion and 70 to 10 degrees extension. The examiner found that abnormal range of motion contributed to functional loss, noting that pain limited range of motion in both extension and flexion. The examiner found there was evidence of pain with weight bearing. The examiner noted that there was objective evidence of knee joint tenderness. The examiner found objective evidence of crepitus. The examiner was unable to perform repetitive use testing due to reported severe pain. The examiner was not examined immediately after repetitive use over time. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the Veteran’s knee was examined during a flare-up. The examiner found range of motion measurements during the flare-up were 10 to 70 degrees flexion and 70 to 10 degrees extension. The examiner found that the Veteran had disturbance of locomotion, interference with sitting, and interference with standing. The examiner noted the Veteran did not have muscle atrophy. The examiner found the Veteran did not have ankylosis. The Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. The examiner found no joint instability, shin splints, or meniscus condition. In December 2019, the September 2019 examiner provided an addendum medical opinion. The examiner found that during a flare-up of his left knee the Veteran had pain, weakness, and a lack of endurance that significantly limited the Veteran’s functional ability. The examiner further found the Veteran did not wear a brace for the healed tibia and fibula fracture with residual deformity. The examiner found nonunion was not identified in a February 2016 x-ray. The Veteran testified in August 2018 in a Board hearing. The Veteran testified that he wore a brace on his left knee. The Board finds a preponderance of the evidence is against entitlement to a rating in excess of 30 percent. There is no evidence of nonunion of the Veteran’s fracture with loose motion that requires a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. There are no post-service treatment records that indicate nonunion of the Veteran’s tibia of fibula. Although the Veteran competently and credibly testified that he wore a knee brace, the September 2019 examiner noted in an addendum opinion that there was no evidence of nonunion documented in an x-ray examination; and the Veteran’s tibia and fibula fracture had healed. The September 2019 examination evidence did not show ankylosis (DC 5256), instability or subluxation (DC 5257), a meniscal condition (DC 5258 and 5259). There is disability rating higher than 30 percent for limitation of flexion (DC 5260). To the extent that the Veteran had painful motion of the left knee, this is already contemplated the rating assigned under Diagnostic Code 5262, which is partly based on the Veteran’s reports of painful motion. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board also finds that a separate rating for the Veteran’s limitation of extension is not warranted. The Veteran’s extension was noted to be limited to 10 degrees in the September 2019 VA examination. Under Diagnostic Code 5261 limitation of leg extension, a 10 percent disability rating is warranted for limitation of extension to 10 degrees. The Board has considered whether a separate disability rating of 10 percent rating under 5261 for limitation of extension is duplicative compensation. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5262, ratings are assigned for impairment of the tibia and fibula, including for malunion, with slight, moderate, or marked knee or ankle disabilities. Looking to the plain meaning of the terms used in the rating criteria, “disability” means “incapacity or lack of ability to function normally” that may be either physical, mental, or both, including anything that causes such incapacity. Dorland’s Illustrated Medical Dictionary 526 (32nd ed. 2012). The Court has held that the regulatory definition of “disability” is the “impairment of earning capacity resulting from such diseases or injuries and their residual conditions.” Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Furthermore, “impairment” is “any abnormality of, partial or complete loss of, or the loss of the function of, a body part, organ, or system” that is “due directly or secondarily to pathology or injury and may be either temporary or permanent.” Dorland’s Illustrated Medical Dictionary at 922. Thus, the requirement of a knee “disability” under Diagnostic Code 5262 is broad enough to encompass all symptoms, including pain, limitation of motion, stiffness, and instability. Therefore, the rating of the Veteran’s left knee disability maintains a rating of 30 percent under 5262, and does not warrant a separate compensable rating under 5261 for limitation of extension as to do so would constitute pyramiding. See 38 C.F.R. § 4.14. The Board has considered the impact of functional loss on the Veteran’s range of motion of the left knee but the clinical findings do not suggest that range of motion would change to the degree required for a higher rating due to pain, or after repetitive use, or with weight bearing, or during flare-ups. The evidence in the record does not indicate that during a flare-up, the Veteran’s limitation of extension was 30 degrees or higher (a 40 percent rating under Diagnostic Code 5261). Notably, the Veteran’s September 2019 VA knee examination was conducted during a flare-up. During that flare-up the Veteran’s extension was limited to 10 degrees. Because the range of motion findings show that the Veteran’s extension is limited to 10 degrees, even with consideration of the factors listed above, there is no indication his left knee disability is productive of any significant or additional functional loss beyond that contemplated by the 30 percent rating assigned. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra; Mitchell, supra; Correia, supra; and Sharp, supra. In sum, the Board finds that a rating in excess of 30 percent for the Veteran’s residuals of a tibia and fibula fracture with left knee degenerative joint disease is not warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right ankle disability The Veteran contends that his right ankle disability is etiologically related to his service, or in the alternative related to his service-connected residuals of a left tibia and fibula fracture with degenerative arthritis of the left knee. In September 2019, the Veteran underwent a VA examination. Upon examination the examiner found that the Veteran had painful movement and abnormal range of motion of his right ankle. In November 2019, the examiner opined that the Veteran’s right ankle condition is less likely than not proximately due to or the result of the Veteran’s service-connected condition. The examiner further found that the Veteran’s right ankle pain and limited range of motion is less likely as not aggravated by its natural progression by his residuals of tibia and fibula fracture and left knee degenerative arthritis. The Board finds that a remand is required in order to obtain an addendum medical opinion. In September 2019, the Veteran was service-connected for arthritis of the right knee, secondary to the Veteran’s residuals of his tibia and fibula fracture with degenerative joint disease of the left knee. Although, the September 2019 VA examiner found the Veteran’s right ankle disability was not caused or aggravated by his left leg disability, the examiner did not provide an opinion related to his service-connected right knee arthritis. As such, the Board finds that an addendum medical opinion is required to determine whether the Veteran’s right knee arthritis caused or aggravated the Veteran’s right ankle disability. 2. Entitlement to service connection for left leg neuropathy The Veteran contends that his left leg neuropathy is secondary to his service-connected left tibia and fibula with degenerative arthritis of the left knee. The Veteran underwent a VA nerve examination in September 2019. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner reasoned that the Veteran’s left leg neuropathy did not fully constitute his complaints. The examiner noted that the Veteran had complaints of neuropathy of neuropathic pain in all four extremities. The Veteran is a diabetic and has a diagnosis of diabetic peripheral neuropathy. The Veteran’s diabetes was not well controlled. The Veteran’s left leg fracture and degenerative joint disease had no bearing on his complaints of neuropathy in his left leg. The examiner concluded his neuropathy complaints were based on his diabetes. The Board finds that the September 2019 is not adequate for adjudication. The examiner appeared to only provide an opinion as to whether the Veteran’s left lower extremity neuropathy was caused by the Veteran’s service-connected tibia and fibula fracture with left knee degenerative joint disease. The examiner did not opine as to whether the Veteran’s lower leg neuropathy was aggravated by his service-connected left leg and knee disability. Therefore, the Board finds that an addendum medical opinion is required to determine whether his left leg neuropathy was aggravated by his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion by an appropriate clinician to determine the nature and etiology of the Veteran’s right ankle disability. The examiner must opine whether the Veteran’s right ankle disability is at least as likely as not (1) proximately due to the Veteran’s service-connected right knee arthritis or other service-connected disability, or (2) aggravated beyond its natural progression by his service-right knee arthritis or other service-connected disability. The examiner must provide a complete medical rationale for each opinion provided. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left leg neuropathy was aggravated beyond its natural progression by the Veteran’s service-connected residuals of a tibia fibula fracture with left knee degenerative joint disease, left ankle arthritis or other service-connected disability. (Continued on the next page)   The examiner must provide a complete medical rationale for each opinion provided. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.