Citation Nr: 21000677 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-02 731 DATE: January 5, 2021 ORDER Entitlement to a compensable (greater than 0 percent) disability rating for residuals of a fracture of the left tibia and fibula, with limitation of extension of the left knee is denied. Entitlement to an increased disability rating, greater than 30 percent, for residuals of a fracture of the left proximal tibia and fibula, with limitation of flexion of the left knee is denied. Entitlement to a separate 10 percent disability rating for recurrent subluxation or lateral instability of the left knee is granted. FINDINGS OF FACT 1. During the entire appeal period, the Veteran’s service-connected residuals of a fracture of the left tibia and fibula has manifested in extension limited to 5 degrees or less. But it has not been manifested by limitation of extension that more nearly approximated 10 degrees or greater. 2. During the entire appeal period, the Veteran’s service-connected residuals of a fracture of the left tibia and fibula has manifested by limitation of flexion at 15 degrees or less. 3. On and after March 25, 2012, there is evidence of joint instability in the left knee that is “slight.” But the evidence of record does not demonstrate left knee subluxation or lateral instability to a “moderate” or “severe” degree. CONCLUSIONS OF LAW 1. From March 25, 2012, the criteria for a compensable disability rating for limitation of extension from residuals of a fracture of the left tibia and fibula have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 2. From March 25, 2012, the criteria have been met for the maximum 30 percent disability rating for limitation of flexion from residuals of a fracture of the left tibia and fibula have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. From March 25, 2012, the criteria are met for a 10 percent disability rating, but no greater, for instability associated with the Veteran’s service-connected residuals of a fracture of the left tibia and fibula. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.31, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 through November 1983, and from July 1986 through June 1989. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In July 2012, the AOJ issued a rating decision that assigned a 10 percent disability rating under Diagnostic Code (DC) 5299-5260 for the Veteran’s service-connected residuals of fracture of the left proximal tibia and fibula. The AOJ also assigned a noncompensable (zero percent) rating under DC 5261, limitation of extension of the left leg, for his service-connected residuals of fracture of the left tibia and fibula. The Veteran timely disagreed in a July 2012 Notice of Disagreement (NOD) and perfected his appeal in a January 2015 VA Form 9. In October 2018, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Then, the Board remanded the claims to the AOJ for a new VA disability examination. In January 2020, a VA disability examination was conducted. Then the AOJ re-adjudicated the Veteran’s claims: the AOJ increased the disability rating for the Veteran’s service-connected residuals of fracture of the left proximal tibia and fibula with limitation of flexion to 30 percent under DC 5260. The AOJ declined to increase the noncompensable rating under DC 5261. In September 2020 the Veteran’s case was returned to the Board. In November 2020, the Veteran’s representative submitted an Appellate Brief wherein he asserts the Veteran’s diabetes is secondary to his service-connected residuals of fracture of the left proximal tibia and fibula. The record shows this claim was denied by the AOJ in an April 2016 Rating Decision and was not appealed. Thus, the Board does not have jurisdiction over this particular claim. The Veteran’s representative also asserted the Veteran’s coronary artery disease is secondary to his service-connected residuals of fracture of the left proximal tibia and fibula. The record reflects this claim has not been adjudicated by the AOJ. As such, the Board does not have jurisdiction over this particular claim. 1. Entitlement to a compensable (greater than 0 percent) disability rating for residuals of a fracture of the left tibia and fibula, with limitation of extension of the left knee. The Veteran contends his service-connected residuals of a fracture of the left tibia and fibula has worsened and the severity of his disability warrants an increased disability rating. See May 2012 Statement of the Case. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 U.S.C. § 1155; 38 C.F.R., Part 4. If there is a question as to which evaluation to apply to the 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-39 (2011). The Veteran’s service-connected residuals of a fracture of the left proximal tibia and fibula is rated as 30 percent disabling under DC 5260, Limitation of Flexion of the Leg. Also, it has been assigned a noncompensable (0 percent) rating under 5261, Limitation of Flexion of the Leg. 38 C.F.R. § 4.71a (2017). Under DC 5260, rates are based on limitation of flexion (bending) of the leg. That code provides that when flexion is limited to 15 degrees or less, a 30 percent disability rating is warranted. A 30 percent disability rating is the maximum disability rating. 38 C.F.R. § 4.71a. Under DC 5261, rates are based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable (0 percent) disability rating is warranted. When it is limited to 10 degrees, a 10 percent disability rating is warranted. When limitation is at 15 degrees, a 20 percent disability rating is warranted. When it is limited to 20 degrees, a 30 percent disability rating is warranted. When it is limited to 30 degrees warrants a 40 percent disability rating is warranted. And when it is limited to 45 degrees, a 50 percent disability rating is warranted. A 50 percent disability rating is the maximum schedular rating. 38 C.F.R. § 4.71a. Under VAOPGCPREC 23-97, a Veteran may be assigned separate ratings for limitation of motion under DCs 5260, 5261, as well as for instability/subluxation, under 5257. See VAOPGCPREC 23-97 (July 1, 1997). Under DC 5257, recurrent subluxation or lateral instability of the knee, rates are based on severity of the impairment. That code provides that when the impairment is slight, a 10 percent rating is warranted. When the impairment is moderate, a 20 percent rating is warranted. When the impairment is severe, a 30 percent rating is warranted. A 30 percent rating is the maximum schedular disability rating available under this code. 38 C.F.R. § 4.71a, DC 5257. Objective medical evidence is not required to establish lateral knee instability under DC 5257; thus, objective medical evidence cannot be categorically found more probative than lay evidence with respect to this code. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Any reasonable doubt regarding a degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Reasonable doubt exists when there is an approximate balance of positive and negative evidence for and against the claim. 38 C.F.R. § 3.102. Beginning with the evidence of record, in May 2012, the VA received a statement from the Veteran wherein he claims he observes constant pain and numbness at the left leg. Also, he needs a cane to walk. See May 2012 Statement in Support of Claim. In July 2012, the Veteran underwent a VA disability examination for his knees. The Veteran reported he observes increased pain in his knee and lower leg. The pain is observed daily. He reported his symptoms affect his ability to walk and bend the knee. He also reported he works as a fire inspector and uses a cane for stability. See July 2012 VA Disability Benefits Questionnaire (DBQ) at 2.The examiner noted the Veteran did not report flare-ups that impact the function of his knee or lower leg. Id. The examiner noted the diagnosis of fracture of proximal tibia/fibula. And a scar related to his diagnosis. He acknowledged the Veteran’s constant use of a cane and crutches for stability. He also noted there is evidence of degenerative or traumatic arthritis at the left knee. Id. at 1, 12, 13. Range of motion testing was performed on the left knee. Pain was noted on examination at flexion. Initial measurement for flexion was 115 degrees; for extension, it was limited to 5 degrees. Repetitive use testing did not reveal any additional loss of motion. Although the examiner noted the Veteran did not report any flare-ups, the examiner opined that pain results in functional loss. He did not describe the functional loss in terms of range of motion limitations. Id. at 5-6. Range of motion testing for was performed on the right knee as well. No pain was noted on examination. Initial measurement for flexion was 140 or greater degrees; for extension, it was 0 degrees. Repetitive use testing did not reveal any additional loss of motion. And he found there is no functional loss for the right lower extremity. Id. The examiner also noted there is no recurrent subluxation or lateral instability nor meniscal conditions of either knee. Joint stability testing for both knees was normal. Id. at 7-8, 9, 13. In January 2015, the Veteran reported to the VA that he observes increased pain at the left leg. Also, he has to use crutches during the cold months. See VA Form 9 at 1. An October 2018 private medical record by A.M.P., ARNP, notes she has been seeing the Veteran since September 11, 2018. She also notes the Veteran has reported intermittent aches of his knee and ankle after walking extended periods of time. And it has worsened over the last year. See October 3, 2018, Private Medical Record by A.M.P., ARNP. Later in October 2018, a Board hearing was conducted for the Veteran’s entitlement claim. The Veteran reported his left knee disability has worsened. He reports he observes pain, swelling, at his knee and ankle. And when he wakes up in the morning, he observes stiffness of the heel, knee, and ankle. See Transcript dated October 2018 at 3. The Veteran described his flares-ups. He claims both knees will swell, and he cannot move at all. Id. at 5. The Veteran was asked about his functional limitations. He reported he could stand about 45 minutes before having to sit down. And he could walk about a quarter mile before observing problems with his leg. Id. at 10. The Veteran was asked about any knee instability. The Veteran claims he has instability in the left knee. Although he denied falling in the past month, he claims he almost fell at least four to five times in the past. Id. at 4. In January 2020, the Veteran underwent another VA disability examination for his knees. The Veteran reported his current symptoms include severe stiffness in both legs, hips, and ankles. He reported his symptoms affect his ability to walk, sit, stand, squat, go upstairs, and ability to exercise. And his limitations restrict him from performing his job as a fire inspector. See January 2020 VA DBQ at 5. He described flare-ups at his left knee that are precipitated by change of weather or standing for a long period of time. He reported his left knee flares-up one to two times a month, will last one to two weeks, and reported they are severe. He reported his flare-ups prevent him from exercising and, sometimes, he cannot walk more than 10 minutes (even with a cane). Id. at 5, 13. He also described flare-ups at his right knee that are precipitated by change of weather or standing for a long period of time. His description of his right knee flare-ups was the same as the description of his left knee flare-ups. Id. The examiner noted the diagnoses of residuals of fracture of the left proximal tibia and fibula and limited of extension of the left knee. He also noted there is no evidence of degenerative or traumatic arthritis. He acknowledged the Veteran’s regular use of a cane. Id. at 2, 12, 13. Range of motion testing was performed on the left knee. Pain was noted on examination at flexion and with weightbearing. Initial measurement for flexion was 0 to 10 degrees; for extension, it was 10 to 0 degrees. Repetitive use testing did not reveal any additional loss of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. Although the examiner did not examine the Veteran after repeated use over time, he provided an opinion based on the Veteran’s statements describing functional loss: the examiner opined that pain results in functional loss. The examiner described the functional loss in terms of range of motion limitations: flexion was 0 to 5 degrees; extension was 5 to 0 degrees. Id. at 5-8, 14. Similarly, the examiner provided an opinion on functional loss during a flare-up based on the Veteran’s description: the examiner opined that pain results in functional loss. He also described the functional loss in terms of range of motion limitations: flexion was 0 to 5 degrees; extension was 5 to 0 degrees. The examiner noted there is no evidence of pain on passive range of motion or weightbearing testing. Id. The examiner also noted neither the left nor right knee is ankylosed. Nor is there recurrent subluxation or lateral instability nor meniscal conditions of either knee. Joint stability testing for both knees was normal. Id. at 10-12. Range of motion testing was performed on the right knee as well. No pain was noted on examination. Initial measurement for flexion was 0 to 110 degrees; for extension, it was 110 to 0 degrees. Repetitive use testing did not reveal any additional loss of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. Although the examiner did not conduct the range of motion testing during a flare up, the examiner provided an opinion based on the Veteran’s statements describing functional loss: the examiner opined that pain, fatigue, weakness, lack of endurance, and incoordination does not result in functional loss. The examiner noted there is no evidence of pain on passive range of motion or weightbearing testing. Id. The examiner also opined that the Veteran’s left knee disability has worsened since previous exams. And the effects of that disability impact his occupational functioning and activities of daily living. Id. at 14. Turning to the Veteran’s claim for disability compensation, the first issue is whether the manifestations of the Veteran’s service-connected residuals of fracture of the left tibia and fibula (left leg disability) warrant a compensable disability rating (greater than zero percent) under DC 5261, limitation of extension of the left leg. For the reasons discussed below, the Board concludes a compensable disability rating is not warranted. The Board finds the Veteran’s reports of pain and swelling credible. The Veteran is competent to describe observations gained through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the record reflects consistent reports of pain throughout the appeal period. Also, his reports to VA and private medical providers have been approximately the same. Considering the consistency, frequency, and similarity of his reports to medical providers, the Board assigned his observations significant probative weight of pain in the left knee and lower leg. The Board notes a VA examiner considered the Veteran’s statements and portrayed them in terms of the range of motion limitations DC 5261 requires. The limitations portrayed by the examiner (extension limited to zero degrees during a flare-up) did not warrant an increased disability rating. See January 2020 VA DBQ at 14. The next higher rating, a 10 percent rating, requires a limitation of extension at 10 degrees. Thus, the lay evidence of record does not establish that an increased disability rating is warranted. Although the Board finds the Veteran observations of pain, stiffness, swelling, credible—they are not sufficient to assign an increased disability rating under DC 5261. This is because, under 5261, disability ratings are assigned based on evidence of limited motion. A claimant’s descriptions of symptoms may be helpful in making that determination, but the statements of record here do not. Thus, they were assigned some, but not significant, probative weight in favor of an increased rating. The January 2020 VA DBQ was assigned significant probative weight against assigning a compensable disability rating under DC 5261. The examiner considered the lay statements found throughout the record, to include the Veteran’s pain, severe stiffness, as well as his difficulty standing, walking, sitting, and exercising. See January 2020 VA DBQ at 5. The examiner acknowledged and considered the Veteran’s reports of flare-ups. Id. at 2. And he articulated the frequency, duration, or severity of the flare-ups. Id. Then, the examiner quantified those effects in terms of additional range of motion limitations. Id. at 8. So, the record reflects the examiner elicited information from the Veteran regarding the disabling effects of pain during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner also noted the functional loss due to fatigue, weakness, lack of endurance, and coordination. And he quantified those effects in terms of range of motion limitations. Mitchell, 25 Vet. App. at 37-38. Since the examiner considered the Veteran’s lay statements and addressed any functional loss during flare-ups—the Board finds the January 2020 VA DBQ provides a clear picture of the extent to which pain is disabling—and assigned it significant probative weight. Id. at 44. Based on the examiner’s description of range of motion limitations during flare-ups, the Veteran is entitled to a noncompensable (zero percent) disability rating under DC 5261, which is the disability rating currently assigned. The Board notes the July 2012 VA disability examination also weighs against assigning an increased disability rating. The range of motion limitation for extension was 5 degrees, which warrants a noncompensable rating. Although the examiner failed to address any additional limitation due to the Veteran’s flare-ups, it still provides competent and credible medical evidence of his range of motion limitations when he was not experiencing flare-ups. And that finding was assigned some, but not significant, weight against an increased disability rating. Also, the July 2012 and January 2020 VA disability examinations did not find range of motion limitations that warrant an increased disability rating at any time during the period on appeal. So, staged ratings are not warranted. Hart, 21 Vet. App. at 505. In this case, the evidence is not approximately balanced in favor of an increased disability rating. The probative weight assigned to the January 2020 VA DBQ outweighs the weight assigned to the lay evidence of record. As discussed above, the Veteran’s lay statements did not provide a disability picture that was sufficient to evaluate the claim under DC 5261. But the examiner, in the January 2020 VA DBQ, did. Thus, it is the evidence of record that provides the clearest picture of the disabling effects of his left leg disability. As a result, it outweighed the lay evidence of record. Since the evidence weighing against an increased rating outweighs the evidence in favor of one, reasonable doubt cannot be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Accordingly, the Board finds that a disability rating in excess of zero percent for his service-connected residuals of fracture of the left tibia and fibula is not warranted. Since the Veteran may be assigned separate ratings under DCs 5258/5259 (dislocated/removal of semilunar cartilage), and 5256 (ankylosis), the next issue is whether there is evidence that warrants a separate rating under 5258/5259 or 5256. The Board finds a separate rating under 5258/5259 and 5256 is not warranted. The Veteran has not complained of dislocated/removal of semilunar cartilage (meniscal conditions). Also, the July 2012 and January 2020 VA disability examinations noted the Veteran does not have manifestations of meniscal conditions. See July 2012 VA DBQ at 9-10; January 2020 VA DBQ at 11. Thus, a separate rating under DC 5258/5259 is not warranted at this time. As to the Veteran’s observations of “severe stiffening,” the examiner who conducted the January 2020 VA disability examination noted no ankylosis. See January 2020 VA DBQ at 10. So, consideration of a separate rating under DC 5256 is not warranted. The Board acknowledges the January 2020 VA disability examination notes there is no arthritis and the July 2012 notes there is. The Board finds the discrepancy does not prejudice the Veteran. This is because the Veteran has been assigned a compensable rating for the limited motion of the knee under DC 5260 at 30 percent. Thus, a separate rating for arthritis under DCs 5003 is not warranted. 38 C.F.R. § 4.71a, DC 5003. In sum, the evidence of record does not show that the manifestations of the Veteran’s service-connected knee disability warrant a compensable rating under DC 5261 at this time. Nor do they warrant separate evaluations under DCs 5258/5259 or 5256. The Board also notes that this case does not raise a claim for a Total Disability Rating Based Upon Individual Unemployability. Although the lay and medical evidence of record shows the Veteran’s left leg disability interferes with his work as a fire inspector, the record reflects he continues to be employed in that position. See January 2020 VA DBQ at 14. Thus, there is no indication that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a); Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Board regrets a more favorable decision could not be reached in the Veteran’s case. 2. Entitlement to an increased disability rating, greater than 30 percent, for residuals of a fracture of the left proximal tibia and fibula. The question for the Board is whether the manifestations of the Veteran’s service-left leg disability warrant a disability rating greater than 30 percent under DC 5260, limitation of flexion of the leg. The record reflects the Veteran has been assigned the maximum rating under 5260. So, the Veteran cannot be granted a higher disability rating for the limitation of flexion associated with his left leg disability. As noted above, the record does not show that the Veteran has had ankylosis of the knee at any time during the course of the appeal. 3. Entitlement to a separate disability rating for recurrent subluxation or lateral instability of the left knee. The question for the Board is whether there is sufficient evidence of joint instability in the left knee to warrant a separate evaluation under DC 5257, recurrent subluxation or lateral instability. For the reasons discussed below, the Board finds there is. The Veteran’s lay statements and observations are competent to a support a compensable rating under DC 5257. English, 30 Vet. App. at 352-354. Here, he has observed his left knee give way causing him to almost fall. See Transcript dated October 2018 at 4-5. Also, he has consistently reported the need for a cane or crutches for instability. Considering he has provided consistent reports to the VA, medical providers, and the undersigned Veterans Law Judge, the Board finds his statements credible and assigned them significant probative weight towards instability at the left knee. See July 2012 VA DBQ at 13; January 2015 VA Form 9; Transcript dated October 2018 at 4; January 2020 VA DBQ at 12. But the lay evidence of record does not describe the severity of his instability to be more than slight. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Although the Veteran has not described his instability in much detail, he has reported his left knee has caused him to almost fall a few times in the past. The small number of incidents indicates to the Board that the severity of his instability is no more than slight. See Transcript dated October 2018 at 4-5. The July 2012 and January 2020 VA disability examinations support the Board’s inference. The examiners evaluated whether the Veteran for instability at the left knee: the examiners noted the Veteran’s stability was normal. Thus, the medical evidence of record supports the Veteran does not have instability at the left knee that is greater than “slight.” See July 2012 VA DBQ at 8; January 2020 VA DBQ at 10. In this case, the evidence is at least approximately balanced in favor granting a separate evaluation under DC 5257 for instability at the left knee. The Veteran’s statements and observations are probative evidence of instability. And even though the VA disability examinations found his stability is normal, nothing in 5257 requires objective medical evidence of knee instability is required or is to be favored over lay evidence. English, 30 Vet. App. at 353. So, doubt was resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Accordingly, the Board finds that a separate evaluation for instability at the left knee under DC 5257 of 10 percent, but no greater, is warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.