Citation Nr: 21000462 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-41 515 DATE: January 5, 2021 ORDER Entitlement to an increased rating of 30 percent for stress fracture of the left tibia effective April 10, 2014 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s stress fracture of the left tibia is manifested by painful motion and instability of the joint. 2. The Veteran’s service-connected stress fracture of the left tibia does not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 30 percent rating for stress fracture of the left tibia effective April 10, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.71a, DC 5262. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1958 to February 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision. The Veteran withdrew his request for a Board hearing. The Board issued a decision on the issue in July 2018 which was appealed to the CAVC. A Joint Motion for Remand (JMR) was granted, and the case remanded to the Board for further adjudication on the issue decided herein. In accordance with the JMR, in January 2020 the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to an increased rating for stress fracture of the left tibia, rated as 10 percent disabling prior to July 25, 2017, and 20 percent disabling thereafter The Veteran seeks a rating in excess of 10 percent for stress fracture of the left tibia prior to July 25, 2017, and in excess of 20 percent thereafter. The Veteran’s stress fracture of the left tibia is rated under DC 5262. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine 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, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Under DC 5262, a 20 percent rating is warranted with moderate knee or ankle disability; a 30 percent rating is warranted for marked knee or ankle disability; and a 40 percent rating is warranted for nonunion with loose motion, requiring a brace. 38 C.F.R. § 4.71a. Descriptive words such as “slight,” “moderate,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. In the JMR, the parties agreed that the “Board also failed to provide an adequate statement of reasons and bases for denying a disability rating in excess of 20%, for the period after July 25, 201[7], where the Board did not explain its understanding and application of the terms ‘slight,’ ‘moderate,’ and ‘marked’ as used in Diagnostic Code (DC) 5262.” The parties noted that in “Johnson v. Wilkie, 30 Vet. App. 245 (2018), the Court held that where the Board uses ‘standards’ that ‘are undefined in the Board’s discussion or anywhere in the regulatory structure’ without defining them, the Board errs.” The Board’s understanding of these terms is to include functional impairment associated with loss of motion and instability of the joint that when approximately one-third less than full, this approximates slight impairment, when approximately two-third less than full, this approximates moderate impairment, and any greater impairment approximates marked impairment. The Veteran reported his pain and mobility were getting worse. See January 2015 Correspondence. He reported that pain makes it difficult for him to work due to shifting gears, getting in and out of his 18-wheel work truck, and standing on the loading docks for long periods of time. See March 2014 Statement in Support of Claim. He sometimes misses work due to the pain. Id. Upon VA examination, the Veteran’s left knee flexion was 0 to 130 degrees and showed no objective evidence of painful motion. See April 2014 VA examination. He had no limitation on extension and no objective evidence of painful motion. Id. The Veteran’s left knee exhibited normal joint stability test results and there was no evidence of recurrent patellar subluxation or dislocation. Id. There was no meniscal condition. Id. The Veteran related that he experienced occasional pain when walking directly localized in the left tibia. Id.; November 2016 Private Treatment Records. The Veteran had no functional loss and his ability to work was not impacted. Id. The Veteran’s private treatment records show the Veteran complained of left knee pain and his left knee giving out on him. See July 2017 Private Treatment Records. The Veteran has fallen down stairs, has trouble walking, and his knees buckle and swell. Id. He twisted his ankle when he fell down some stairs and continued to have pain in his ankle as well as medial and lateral pain. Id. The Veteran is a truck driver and he had to take off work due to the pain in his knee. Id. The Veteran has pain when he walks and when he rises from a seated position. See September 2017 Private Treatment Records. The Veteran relates he is unable to stand for more than five minutes or walk for more than a block due to unbearable pain. See July 2017 VA Form 9. Upon VA examination, the Veteran reported that he fell three times in three months due to his left knee giving out. See March 2018 VA examination. The Veteran did not report flare-ups or functional loss of the knee or lower leg. Id. The VA examiner found the range of motion for the left knee was normal with no flare-ups. Id. The Veteran’s flexion and extension exhibited pain with and without weight bearing with no functional loss. Id. There was objective evidence of crepitus. Id. Additional factors contributing to the Veteran’s disability include less movement than normal, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Id. There was slight reduction in muscle strength. Id. The Veteran had muscle atrophy on the left side (2 cm less than the normal side), slight lateral instability, and joint instability (2+). Id. The Veteran also reported the regular use of a brace and a cane. The examiner reported functional loss as no physical work. Id. Upon VA examination in September 2020, the Veteran related that he gets pain going up and down stairs, and when he walks or stands for a few minutes. He did not report flare ups, but stated he has pain with weight-bearing in his left lower tibia and can only walk two blocks. His left knee initial range of motion was to 140 degrees upon flexion and to zero degrees upon extension. There was no pain noted on examination. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner did not detect muscle atrophy or ankylosis. Joint stability tests showed no recurrent subluxation, lateral instability, or recurrent effusion. The Veteran had no meniscus condition. The Veteran reported that he constantly uses a brace on his left leg to assist in stability in his left leg. The Veteran relates that he uses a cane and a knee brace for his mobility. See June 2020 Statement in Support of Claim. After further consideration, the Board will resolve reasonable doubt in favor of the Veteran and find that his symptoms most closely reflect impairment warranting a higher disability rating. The range of motion shown on flexion and extension is noncompensable under DC 5260 and DC 5261. In fact, the Veteran demonstrated full range of motion on VA examination in March 2018 and again in September 2020. He demonstrated no pain on range of motion testing in September 2020. The Veteran, however, has complained of painful motion which was demonstrated on examination in March 2018. Pain alone does not constitute functional loss, but is just one fact to be considered when evaluating functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32 (Aug. 23, 2011). The Veteran complains that the pain affects his ability to drive his truck, and affects prolonged standing and walking. The Veteran also complains of instability of the knee that has caused several falls. He uses an assistive device. While the September 2020 VA examination revealed normal findings, the March 2018 VA examination revealed slight reduction in muscle strength (4/5, which is only one-fifth less than full), slight muscle atrophy (only 2 cm less than the normal side), lateral instability described as “slight” by the examiner, and moderate joint instability (2+, which is more than 1+ but less than 3+). Id. As such, the Board finds that the Veteran should be compensated for painful motion and instability of the joint commensurate with a 30 percent rating under DC 5262, but no higher, effective April 10, 2014, the date of claim. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The TDIU claim at hand was inferred as a part of the Veteran’s current appeal of a higher rating for his service-connected stress fracture of the left tibia. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2019). Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In circumstances where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Veteran’s only service connected disability is the stress fracture of the left tibia. Thus, the Veteran does not meet the initial schedular threshold to be considered for a TDIU. However, where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38C.F.R. §4.16 (b). In May 2020, the Veteran was provided with VCAA notice in regard to substantiating a claim for a TDIU and requested to complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. No response has been received from the Veteran. Turning to the evidence, the Veteran underwent VA examination in April 2014. The examiner marked that the Veteran’s lower leg condition would not impact his ability to work. In the Veteran’s July 2017 appeal to the Board, the Veteran stated he stopped working early because of the effects of his disability. In a September 2017 private treatment record, the Veteran’s physician noted the Veteran had to take off from work. The Veteran drives a truck and it is too painful to drive. The March 2018 VA examiner noted the Veteran is unable to do physical work. Upon VA examination in September 2020, the examiner noted that the Veteran’s ability to work is impacted by an inability to walk more than two blocks due to pain. The examiner stated the Veteran drives an 18-wheeler for work and gets pain in his left tibia when he is constantly having to press the break. The Veteran was looking for drives where there is not so much “touch and go” traffic. After thorough consideration of the above, including the lay testimony of record, the Board finds that the evidence does not persuasively show that the Veteran has significant impairment in his overall functional abilities due to his service-connected stress fracture of the left tibia so as to preclude his ability to obtain or retain substantially gainful employment. From the record, it appears the Veteran has been able to maintain employment as a truck driver throughout the period on appeal. While the Veteran has taken time off due to pain, the examinations of record show the Veteran is able to perform jobs requiring no physical work, and has continued driving an 18-wheeler. Significantly, the Veteran failed to submit VA Form 21-8940 which would have provided such relevant additional information as the Veteran’s employment history and income. While cognizant of the impairment from his service-connected stress fracture of the left tibia, these limitations are recognized by the respective disability rating assigned. The Board finds that the Veteran was not precluded from securing or maintaining substantially gainful employment during the period on appeal due to his stress fracture of the left tibia. In reaching this determination, consideration was not given to his advancing age or nonservice-connected conditions. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing or maintaining substantially gainful employment during the relevant period due to his service-connected stress fracture of the left tibia. To the extent he may have stopped working for a period of time is not enough to warrant entitlement to a TDIU. The ultimate question is whether he is capable of performing the physical or mental acts required by employment, not whether he can find employment. In the present case, the evidence does not persuasively show that he is incapable of performing the acts required for gainful employment due solely to his service-connected stress fracture of the left tibia. Indeed, the evidence shows the Veteran continues to work as a truck driver. Accordingly, entitlement to a TDIU is denied. In reaching the conclusions herein, 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 of entitlement to a TDIU, the doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.