Citation Nr: 21064911 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 17-11 105 DATE: October 22, 2021 ORDER Entitlement to an initial 10 percent, but no higher, rating prior to March 17, 2021 for a left leg disability is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent from March 17, 2021, for a left leg disability is denied. FINDINGS OF FACT 1. Prior to March 17, 2021, the Veteran's left leg disability was manifested by noncompensable limitation of motion, but painful motion and functional impairment were evident. 2. From March 17, 2021, the Veteran's left knee disability is manifested by painful limitation of motion; however, flexion limited to 30 degrees was not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent, but no higher, rating prior to March 17, 2021 for a left leg disability have been met, subject to the regulations governing the payment of monetary awards. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 and 5262. 2. The criteria for a rating in excess of 10 percent from March 17, 2021, for a left leg disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to October 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2020, the Veteran appeared at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In February 2021, the Board remanded this matter for additional development. Included in this remand, was the issue of service connection for a left hip disability. In May 2021, the RO granted service connection for a left hip disability. As such, this represents a full grant of the benefit sought as to that issue and the issue is no longer in appellate status. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. 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 flareups 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 criteria."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. A. Prior to March 17, 2021 The Veteran contends that prior to March 17, 2021, his left leg disability is more severe than the noncompensable evaluation would indicate. Prior to March 17, 2021, the Veteran's left leg disability was rated under DC 5262. Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. The Veteran's increased rating claim was pending before February 7, 2021; thus, the Board will consider the Veteran's claim under both the old and new rating criteria and the criteria that is more favorable to the Veteran will be applied. Prior to February 7, 2021, under DC 5262, impairment of the tibia and fibula manifested by malunion with a slight knee disability warrants a 10 percent rating; malunion with a moderate knee disability warrants a 20 percent rating; and malunion with a marked knee disability warrants a 30 percent rating. Evidence of nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent evaluation. VA regulations do not define the terms "slight," "moderate," or "marked." Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010). "Slight," as an adjective, is defined as "small of its kind or in amount." (Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Oct. 21, 2021)). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." (Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5, (last visited Oct. 21, 2021)). After February 7, 2021, under DC 5262, impairment of the tibia and fibula manifested by malunion is to be evaluated under DC 5256, 5257, 5260, or 5261 and the DC that results in the highest evaluation is to be used. Additionally, under DC 5262 medial tibial stress syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities is to be rated 30 percent disabling; requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity is to be rated 20 percent disabling; requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities is to be rated 10 percent disabling; and treatment less than 12 consecutive months, one or both lower extremities is to be rated a noncompensable. Under DC 5256, ankylosis of the knee, a 30 percent disability rating is warranted for favorable angle in full extension, or in slight flexion between zero and 10 degrees; a 40 percent disability rating is warranted for flexion between 10 and 20 degrees; a 50 percent disability rating is warranted for flexion between 20 and 45 degrees; and a 60 percent rating is warranted for extremely unfavorable, in flexion at an angle of 45 degrees or more. Under DC 5257, for recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Under DC 5257, for Patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note 1 to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 to DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability does not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under DC 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. See 38 C.F.R. § 4.59 (noting that VA recognized that the intent of the rating schedule to recognize painful motion of a joint as productive of disability; therefore, actually painful healed injuries are "entitled to at least the minimum compensable rating for the joint"). Under DC 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Turning to the evidence, the Veteran was afforded a VA examination in April 2013 and the examiner diagnosed the Veteran with healed mild diaphyseal fracture deformities involving the left tibia and fibula. The examiner noted that the Veteran's left leg pain began in service and continued and worsened after service. The examiner stated that the Veteran's pain increased in cold or damp weather and with prolonged standing or walking. The Veteran informed the examiner that his flareups last for several hours and occurred about once or twice per month. The Veteran added that he was not taking any medications for his condition. The Veteran denied the use of assistive devices for locomotion. The physical examination of the left leg revealed no angulation, loss of a bone or part of a bone, false joint, malunion, or nonunion. The Veteran's gait was normal. The examiner noted that the Veteran's left leg condition impacted his abilities to complete daily activities. In January 2017, the Veteran was afforded a VA examination for his hip. The examiner noted that the Veteran did not use any assistive devices as a normal mode of locomotion. In October 2018, the Veteran submitted a Disability Benefits Questionnaire completed by a private provider. The provider indicated that the Veteran's gait was normal and indicated that the Veteran did not use any assistive devices as a normal mode of locomotion. In October 2018, the Veteran was afforded a VA examination for his back. The Veteran's knee extension was noted to show normal strength. The examiner indicated that the Veteran did not use any assistive devices as a normal mode of locomotion. At the August 2020 Board hearing, the Veteran testified that he suffers from daily pain in his left leg since service. The Veteran added that flareups resulted from weather, activity, standing and walking too long, and yardwork. The Veteran stated that stretching and strengthen exercises alleviate his pain. Before March 17, 2021, the Veteran is not entitled to a compensable rating under DC 5262 that was in effect prior to February 7, 2021. Prior to February 7, 2021, DC 5262 allowed a 10 percent rating if impairment of the tibia and fibula was manifested by malunion with a slight knee disability. However, prior to March 17, 2021, the Veteran did not have a malunion in the left leg. Namely, at the April 2013 VA examination the examiner documented that the physical examination of the left leg revealed no angulation, loss of a bone or part of a bone, false joint, malunion, or nonunion. Thus, before March 17, 2021, a compensable rating under DC 5262 that was in effect prior to February 7, 2021, is not warranted. However, the Veteran is entitled to a 10 percent, but no higher, rating under DC 5262 that is in effect after February 7, 2021. After February 7, 2021, under DC 5262, impairment of the tibia and fibula is to be evaluated under DC 5256, 5257, 5260, or 5261 and the DC that results in the highest evaluation is to be used. Under DC 5260 where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. See 38 C.F.R. § 4.59 (noting that VA recognized that the intent of the rating schedule to recognize painful motion of a joint as productive of disability; therefore, actually painful healed injuries are "entitled to at least the minimum compensable rating for the joint"). The evidence shows that the Veteran's left leg limitation of motion results in a noncompensable rating. None of the medical evidence documents flexion limited to 45 degrees. However, the medical and competent lay evidence shows that the Veteran experiences painful motion and functional impairment. For example, the April 2013 examiner noted that the Veteran's left leg condition impacted his abilities to complete daily activities and that the Veteran's pain increased in cold or damp weather and with prolonged standing or walking. Also, during the August 2020 Board hearing the Veteran competently testified that he suffers from daily pain in his left leg and that flareups resulted from weather, activity, standing and walking too long, and yard work. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge). This evidence shows that prior to March 17, 2021, the Veteran's left leg was noncompensable based on limitation of motion. However, the Veteran is entitled to a 10 percent, but no higher, rating under DC 5262 that is in effect after February 7, 2021, because there is evidence of painful motion and functional impairment. 38 C.F.R. § 4.59. For these reasons, the Board concludes that the criteria for an initial 10 percent, but no higher, rating prior to March 17, 2021 for a left leg disability are met, subject to the regulations governing the payment of monetary awards. B. From March 17, 2021 The Veteran contends that he is entitled to a rating above the 10 percent assigned from March 17, 2021. From March 17, 2021, the Veteran's left leg disability is rated under DC 5260. As explained above, the criteria for rating musculoskeletal disabilities have changed during the period covered by this appeal, effective February 7, 2021, and the version most favorable to the Veteran applies, absent congressional intent to the contrary. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257); see also 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5260 was not affected by the February 7, 2021, amendments. The Veteran was afforded a VA examination on March 17, 2021. The examiner diagnosed the Veteran with residuals of a left tibia/fibula fracture. The Veteran described his pain as a constant mild dully pain in the anterior lower leg. The Veteran did not report any flareups but indicated functional loss or functional impairment due to difficulty with prolonged walking, standing, and climbing stairs. The Veteran denied a history of instability or recurrent subluxation of the knee and frequent effusion of the knee. The Veteran's left knee range of motion was measured to be normal. Specifically, the active flexion and extension range of motion was measured to be 140 degrees and 0 degrees, respectively. The passive range of motion and repetitive use testing measurements were the same as the active range of motion measurements. There was no evidence of pain, crepitus, muscle atrophy, ankylosis, recurrent subluxation or persistent instability, ligament tear (sprain), or patellar instability. Similarly, the Veteran was not diagnosed with recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or a meniscus (semilunar cartilage) condition. The Veteran's left leg joint stability tests did not show anterior, posterior, medial, or lateral instability. However, there was evidence of mild localized tenderness or pain on palpation of the anterior lower leg. The examiner documented that pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time or with flareups. The Veteran's leg condition impairs his ability to perform tasks that involve prolonged walking, standing, and climbing stairs due to pain. The Veteran did not require a prescription for (by a medical provider) or use an assistive device (e.g., cane(s), crutch(es), walker) for ambulation. The Board concludes that a preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted anytime during the appeal period. The competent and probative evidence of record does not more nearly show that the Veteran's left leg flexion is limited to 30 degrees. Indeed, the March 17, 2021 range of motion findings show the Veteran's left leg active flexion and extension to be 140 degrees and 0 degrees, respectively. The passive range of motion and repetitive use testing measurements were the same as the active range of motion measurements. The Board finds that even when considering functional loss due to prolonged walking, standing, climbing stairs, pain, and flare-ups, the Veteran's left leg disability is most nearly approximated by flexion is limited to 45 degrees. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). These factors have not been shown to result in a disability picture that most nearly approximates flexion limited to 30 degrees during anytime during the appeal period. As such, a preponderance of the evidence is against a finding that a rating in excess 10 percent during anytime during the appeal period is warranted. The Board has also considered other DCs during the appeal period. The consideration of other Diagnostic Codes in effect prior to February 7, 2021, for rating a knee disability (5256, 5257, 5258, 5259, 5261, 5262, 5263) is inappropriate in this case as the Veteran's left knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, recurrent subluxation or lateral instability, cartilage impairment with effusion, removal of cartilage, extension limited to 15 degrees, malunion or nonunion of tibia or fibula, or genu recurvatum). The consideration of other Diagnostic Codes in effect after February 7, 2021, for rating a knee disability (5256, 5257, 5258, 5259, 5261, 5262, 5263) is inappropriate in this case as the Veteran's left knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, recurrent subluxation or instability or patellar instability, cartilage impairment with effusion, removal of cartilage, extension limited to 10 degrees, MTSS or shin splints, or genu recurvatum). (Continued on the next page) Therefore, a 10 percent rating is warranted for the period from March 17, 2021. The preponderance of the evidence is against a finding that a rating in excess 10 percent during anytime during the appeal period is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Patel, 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.