Citation Nr: 21065712 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-47 485 DATE: October 27, 2021 ORDER Entitlement to a disability evaluation greater than 10 percent for right tibia stress fracture is denied. REMANDED Entitlement to service connection for a mental condition, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a right knee condition, including as secondary to the service-connected disability of right tibia stress fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's right tibia stress fracture is manifested by on-again and off-again evidence of slight stress fracture, with right knee complaints of pain, stiffness and limited motion no worse than right knee flexion from 0 to 105 degrees and extension from 105 to 0 degrees. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation greater than 10 percent for right tibia stress fracture have not been met. 38 U.S.C. §§1155, 5107; 38C.F.R. §3.102, § 4.71a, Diagnostic Code (DC) 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 1977 to March 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a VA Regional Office (RO). By way of background, in a July 2019 decision, the Board denied entitlement to service connection for an acquired psychiatric disability to include PTSD, service connection for a right knee disability, as well as a disability rating in excess of 10 percent for right tibia fracture. The Veteran subsequently appealed the Board's July 2019 decision to the U.S. Court of Appeals for Veterans Claims (CAVC) and, in a January 2021 Memorandum Decision, CAVC vacated and remanded the Board's July 2019 decision finding the Board relied on an inadequate VA examination, failed to provide an adequate statement of reasons or bases for its denials and erred in finding the duty to assist fulfilled with regard to verification of the Veteran's claimed stressors. The claims have now returned to the Board for appellate consideration. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to a disability evaluation greater than 10 percent for right tibia stress fracture is denied. Generally, disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. §1155; 38 C.F.R. §§3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38C.F.R. §4.1; Peyton v. Derwinski, 1Vet. App.282 (1991). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App.505(2007). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. §4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. §5107; 38 C.F.R. §3.102; Gilbert v. Derwinski, 1 Vet. App.49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. §4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. §4.7. Here, the Veteran's right tibia fracture is evaluated under the criteria of DC 5262, for impairment of the tibia at 10 percent for malunion of the tibia and fibula with slight knee or ankle disability. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. However, the evidence at issue before the Board for the Veteran's right tibia fracture predates the February 2021 changes to the rating criteria. Therefore, the Board will focus its analysis on the criteria in effect prior to February 7, 2021. Prior to February 7, 2021, under DC 5262 a 10 percent disability rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent disability rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum schedular 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Normal range of motion (ROM) of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71. The Board notes that the terms "slight," "moderate," and "marked," are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. According to Merriam Webster's Collegiate Dictionary (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, during a June 2014 VA examination, the Veteran reported pain and stiffness of the right knee and anterior shin, with baseline pain 2-3/10, and aching. He described daily flares, with pain to 7/10 at the end of the day for several hours after being on his feet. His flares were caused by standing and sitting for long periods of time and were relieved with rest and twice-daily medication. He stated that he limited his standing to a half hour to 45 minutes, that he could walk 30 yards and then step, but was unable to run. He did not kneel or squat. No significant impact was noted on his work. With right knee flexion ending at 125 degrees, his initial range of motion was only slightly less than what is considered normal. There was no limitation of extension. Though he experienced less movement than normal and pain on movement, the Veteran did not have any additional limitation in range of motion following repetitive-use testing. He did not have tenderness or pain to palpation for joint line or soft tissues of either knee. His muscle strength and joint stability tests were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. He once had right shin splints, though not during the examination. He once had a stress fracture of the right leg, and the examiner noted his symptoms of right proximal shin pain. There was no evidence of any meniscal conditions, surgical procedures for a meniscal condition, total knee joint replacement, arthroscopic or other knee surgery, residual signs and/or symptoms due to arthroscopic or other knee surgery, or scars. The Veteran had normal gait and could tandem walk and take steps on heels and toes. He would occasionally use a cane for his non-service-connected back condition with right leg sciatica and mild diabetic neuropathy of the feet. Imaging studies documented degenerative or traumatic arthritis of the right knee. There was no evidence of patella subluxation and no other significant diagnostic test findings or results. The examiner was unable to determine without resorting to speculation regarding any pain, weakness, fatigability, incoordination, or additional loss of motion due to repeated use during a flare-up, as the Veteran was not having a flare condition during the evaluation. There was mild reduction of motion in the right knee with pain and there was no focal tenderness of tibia to palpation. During a May 2015 examination, the examiner noted the Veteran's right knee joint osteoarthritis and right tibia stress fracture. Since 1978, the Veteran reported intermittent pain of right lower leg, mostly when the weather changes. He reported right lower leg pain that gradually and progressively worsened. He used a cane intermittently during lower leg flares, which he described as lots of throbbing pain between his right knee and ankle that would last for days. He reported that he could not stand or walk for prolonged periods. The initial range of motion for his right knee was 0 to 122 degrees for flexion and 122 to 0 degrees for extension. These measurements were only slightly less than normal. The range of motion and pain noted on examination did contribute to or cause functional loss. He exhibited pain on flexion and there was evidence of pain with weight bearing. There was right lateral joint line tenderness and objective evidence of crepitus. There was additional functional loss or ROM after three repetitions, with right knee flexion from 0 to 105 degrees and extension from 105 to 0 degrees. The examination was not conducted during a flare-up and was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. It was not possible to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because there was no conceptual or empirical basis for making such a determination without directly observing function under the conditions present during the examination. The examiner did note disturbance of locomotion and interference with standing. Muscle strength testing was normal and there was no atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no evidence of joint instability. The range of motion for the Veteran's ankle was not affected by his stress fracture. The Veteran described his symptoms as pain with walking and weather changes. The examiner noted that there were no objective symptoms identified on physical examination, and no evidence of shin splints or stress fractures. The Veteran occasionally used a brace and cane due to his right knee. Early degenerative changes of the right knee were documented in imaging studies. For the right leg, the examiner noted that the Veteran could not stand or walk for prolonged periods of time. The examiner also found that that the prior right tibia stress fracture appeared to have resolved, as there was no objective evidence of it. The May 2015 examiner performed another examination in October 2016. She noted the right tibia stress fracture diagnosis. The Veteran experienced difficulty with prolonged walking, which resulted in flare-ups that he described as increased shin pain. The examiner found that initial range of motion testing was not indicated because knee range of motion was not affected by the stress fracture. Muscle strength testing was normal, and the Veteran did not have muscle atrophy or ankylosis. Joint stability testing was not indicated and not performed. Imaging studies were performed and there was no arthritis of the right tibia. In a September 2016 primary care outpatient note, the Veteran reported walking many miles for work. During a January 2017 examination, the Veteran reported that his pain worsened during flare-ups of his knee and/or lower leg which occurred twice a week. He needed a cane. He described being unable to walk long distances or stand for long periods of time. Initial range of motion was reduced, with flexion from 0 to 110 degrees and extension from 110 to 0 degrees. This minimal reduction did not itself contribute to functional loss. Flexion range of motion exhibited pain. There was mild to moderate generalized joint tenderness over the anterior joint directly related to arthritis, with evidence of pain on weight bearing. There was no objective evidence of crepitus. There was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Though the Veteran reported functional impairment worse with repetitive movement, the examiner was unable to state that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time without mere speculation because the Veteran was not examined with repeated use over time. Though the Veteran reported that functional impairment was worse with flare-ups, the examiner was unable to say that pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the examination was not conducted during a flare-up. Muscle strength testing was normal, and the Veteran did not have atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability during testing. The Veteran mainly used a knee brace due to his knee condition but used a cane both for his back and knee conditions. The examiner found that the Veteran would have difficulty functioning in a work environment that involved walking or standing for any period of time. There was evidence that the Veteran had discomfort with non-weight bearing. Passive range of motion did not reveal any change in joint mobility or increase in tenderness when compared with the initial ROM above. In a January 2017 orthopedic surgery consult note, the Veteran reported walking 6 to 7 miles per day and frequently rode a stationary bike. The Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right tibia stress fracture. The evidence above indicates the Veteran's condition is best characterized as slight and therefore an evaluation in excess of 10 percent is not warranted. As noted above, the term "slight" means small in amount. The entirety of the evidence indicates the Veteran's loss in range of motion to be no worse than 0 to 105 degrees upon flexion with normal extension along with symptoms such as pain and stiffness. The indicated loss of flexion is noncompensable under DC 5260 and the symptoms of pain and stiffness are already considered under the current 10 percent rating under DC 5262. Therefore, the Board finds the Veteran's right tibia fracture to best be characterized as slight in nature and that it is fully capable of evaluation under the rating schedule. In conclusion, the Board finds a rating in excess of 10 percent for the Veteran's right tibia stress fracture is not warranted. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for a mental condition, to include posttraumatic stress disorder (PTSD) is remanded. The Veteran contends that his current diagnosis of PTSD is related to service. specifically, the Veteran contends that sometime between November 1997 and March 1978 at a Marine Corps Recruit Depot, he participated in a "blanket party" with fellow servicemembers during which he was ordered to beat another Marine recruit during basic training. Shortly thereafter, one or more of his fellow servicemembers committed suicide. See December 2013 statement and July 2014 correspondence. In January 2021, CAVC determined that a duty to assist error had occurred for VA had failed to obtain evidence to assist the Veteran in corroborating his claimed stressor. CAVC noted, that the duty to assist includes making "reasonable efforts to obtain relevant records...that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain". 38 U.S.C. § 5103A(b)(1); see Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). Furthermore, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, and VA medical records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Here, a thorough review of the claims file indicates no attempt was made by the RO to verify the claimed stressor noted above. As the Veteran has identified a location and timeframe of the claimed stressor, the duty to assist is found to attach. Therefore, a remand is warranted to correct this duty to assist error. 3. Entitlement to service connection for a right knee condition, including as secondary to the service-connected disability of right tibia stress fracture is remanded. The Veteran contends his current right knee condition is directly related to service. Specifically, the Veteran asserts that his right knee condition is secondarily related to his service-connected right tibia stress fracture. CAVC, in its January 2021 decision, found the January 2017 VA medical opinion was inadequate for adjudicative purposes. Specifically, the medical examiner failed to provide an opinion as to aggravation for purposes for the Veteran's secondary theory of service connection. A medical opinion that addresses only causation and not aggravation is inadequate to adjudicate a claim for service connection on a secondary theory of entitlement based on aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As such, and in compliance with CAVC's January 2021 decision, the Board finds that a remand is warranted to afford the Veteran an adequate VA medical opinion that address both causation as well as aggravation. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In CAVC's January 2021 decision, the Court found that entitlement to TDIU was raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds the TDIU claim is intertwined with the service connection claims remanded for further development herein because the Veteran may meet the schedular criteria if service-connection is granted. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the TDIU issue is remanded as inextricably intertwined. See Harris, 1 Vet. App. 180. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records from July 2021 to the present. 2. Efforts must be completed to attempt to verify the Veteran's reported stressor, including the incident whereby the Veteran reported being ordered to beat another Marine recruit during basic training sometime between November 1977 and March 1978 at the Marine Corps Recruit Depot. The RO should contact the National Personnel Records Center (NPRC), NARA, or any other agency deemed appropriate. Any additional action necessary for independent verification of the alleged stressor, including follow-up action requested by the contacted entity, should be accomplished. If the search for corroborating information leads to negative results, the AOJ should notify the Veteran, explain the efforts taken to obtain this information, and describe any further action to be taken. All efforts to verify the Veteran's reported stressors must be documented in the claims file and if it is determined that further efforts would be futile, a memorandum outlining all steps taken and conclusions reached should be drafted and associated with the claims file. 3. After steps 1 and 2 are completed, schedule the Veteran for a psychiatric examination to determine whether the Veteran has posttraumatic stress disorder (PTSD) in accordance with the DSM-5. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to his in-service stressors. To the extent other DSM-5 diagnoses are rendered, it would be of considerable assistance to the Board for the examiner to further opine whether any found diagnosis is "at least as likely as not" related to any incident of service. The claims folder must be made available to the examiner for review in connection with the examination. The examination report should reflect that the claims file was reviewed, including any newly associated medical records. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's right knee condition to ascertain whether the claimed condition can be attributed to service or a service-connected disability. The examiner is directed to review the claims folder. Whether a physical examination is necessary is left to the discretion of the examiner. After a thorough review of the claims file and examinations (to the extent necessary), the examiner is asked to address the following: (a) Whether the Veteran has a right knee diagnosis and, if not, whether the Veteran nonetheless has a right knee disability. The examiner is notified that any right knee pain causing functional impairment of earning capacity is deemed a "disability" for VA purposes. The examiner should clearly identify any and all right knee diagnoses and disabilities found. The examiner should then opine whether any right knee diagnosis or disability found, to include degenerative arthritis, is at least as likely as not proximately due to or aggravated beyond its natural progression by the Veteran's service-connected right tibia stress fracture. With regard to the term "aggravated," as used in 38 C.F.R. § 3.310 (b), the examiner is cautioned that this term does not require that there be "permanent worsening" of the nonservice-connected disability. Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). The examiner should review the entire claims file, including any relevant lay statements and medical evidence. Specifically, the examiner should consider reports that the Veteran experienced pain in his right knee continuously since 1978 after his in-service right tibia fracture. A complete rationale should be provided for any opinions reached. 5. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU and informing him that he must complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim for a TDIU. The Veteran must be made aware that he has an obligation to cooperate in the development of evidence as it pertains to his TDIU claim by returning the evidence requested, to include the VA Form 21-8940. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.