Citation Nr: 21066459 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-34 688 DATE: November 1, 2021 ORDER A 10 percent rating for limitation of flexion of the leg with residuals, stress fracture of the right tibia, prior to February 26, 2018, is granted. A rating higher than 10 percent for limitation of flexion of the leg with residuals, stress fracture of the right tibia, from February 26, 2018, is denied. A separate 10 percent rating for right knee instability is granted. REMANDED Service connection for lumbosacral strain as secondary to a right leg disability is remanded. FINDINGS OF FACT 1. Prior to February 26, 2018, the Veteran experienced painful motion, but his right leg disability was not manifested by ankylosis of the knee, removal of semilunar cartilage, flexion limited to 30 degrees, extension limited to 5 degrees, malunion of the tibia and fibula, or genu recurvatum. 2. Since February 26, 2018, the Veteran continued to experience painful motion, but his right leg disability was not manifested by ankylosis of the knee, removal of semilunar cartilage, flexion limited to 30 degrees, extension limited to 5 degrees, malunion of the tibia and fibula, or genu recurvatum. 3. The Veteran's right leg disability also causes no more than slight instability of the knee. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no higher, for limitation of flexion of the leg with residuals, stress fracture of the right tibia, prior to February 26, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5262. 2. The criteria for a rating higher than 10 percent for limitation of flexion of the leg with residuals, stress fracture of the right tibia, from February 26, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5262. 3. The criteria for a separate 10 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty between August 1974 and May 2003. In a December 2020 decision, the Board of Veterans' Appeals (Board) denied an increased rating for his right leg disability and service connection for lumbosacral strain. He then appealed to the U.S. Court of Appeals for Veterans Claims (Court), which granted a joint motion in June 2021 to vacate the Board's decision and remand the claims for further proceedings. Increased Rating for Right Leg Disability The Veteran seeks a compensable rating prior to February 26, 2018, and in excess of 10 percent thereafter, for limitation of flexion of the leg with residuals, stress fracture of the right tibia (right leg disability). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. VA must evaluate all of the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. During the course of this appeal, VA amended the rating criteria for evaluating musculoskeletal disabilities, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These amendments revised certain diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by the effective date of the amendment. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, where applicable, the Board will consider the Veteran's claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The recent amendments to 38 C.F.R. § 4.71a did not affect Diagnostic Codes 5260 and 5261, which evaluate limitation of flexion and extension of the leg, respectively. Normal range of motion of the leg is from 140 degrees on flexion to 0 degrees on extension. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, a 10 percent rating is assigned where flexion is limited to 45 degrees, a 20 percent rating is assigned where flexion is limited to 30 degrees, and a maximum 30 percent rating is assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is assigned where extension is limited to 10 degrees, a 20 percent rating is assigned where extension is limited to 15 degrees, a 30 percent rating is assigned where extension is limited to 20 degrees, a 40 percent rating is assigned where extension is limited to 30 degrees, and a maximum 50 percent rating is assigned where extension is limited to 45 degrees. Id. When evaluating musculoskeletal disabilities based on limitation of motion, VA must consider functional loss caused by pain or other factors that could occur during flare-ups or after repeated use which may not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.45, VA must also consider 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). Under 38 C.F.R. § 4.59, painful motion associated with joint or periarticular pathology typically warrants at least the minimum compensable rating for the affected joint. Id. at 36; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). Diagnostic Code 5262, which evaluates impairment of the tibia and fibula, changed with the recent amendments to 38 C.F.R. § 4.71a. 85 Fed. Reg. at 76463. Under the former version of Diagnostic Code 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a. The new version of the diagnostic code provides that malunion of the tibia and fibula will be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula with loose motion requiring a brace still warrants a 40 percent rating. 85 Fed. Reg. at 76463. The new version also provides specific rating criteria for medial tibial stress syndrome (MTSS), or shin splints. A noncompensable rating is warranted for shin splints that require treatment for less than 12 consecutive months, in one or both lower extremities. A 10 percent rating is assigned for shin splints that require treatment for no less than 12 consecutive months, and are unresponsive to either shoe orthotics or other conservative treatment, in one or both lower extremities. A 20 percent rating is warranted for shin splints that require treatment for no less than 12 consecutive months, and are unresponsive to surgery and either shoe orthotics or other conservative treatment, in one lower extremity. A maximum 30 percent rating is warranted for shin splints that require treatment for no less than 12 consecutive months, and are unresponsive to surgery and either shoe orthotics or other conservative treatment, in both lower extremities. Id. Diagnostic Code 5257, which evaluates other impairments like instability of the knee, also changed with the amendments to 38 C.F.R. § 4.71a. 85 Fed. Reg. at 76463. Under the former version of Diagnostic 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability of the knee. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A maximum 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Objective medical evidence is not required to establish instability under this version of the diagnostic code. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Nor is objective medical evidence categorically more probative than lay evidence. Id. In applying the former version of the diagnostic code, the Board must rely on the ordinary, dictionary definitions of the terms "slight," "moderate," and "severe" because those terms are not defined in the regulations. According to Merriam Webster's Collegiate Dictionary (11th Ed. 2007), "slight" means small in amount, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. Under the revised version of Diagnostic Code 5257, a 10 percent rating is assigned where a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, a 10 percent rating is assigned 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. 85 Fed. Reg. at 76463. A 20 percent rating is assigned where: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) an unrepaired or failed repair of a complete ligament tear causes persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. Alternatively, a 20 percent rating is assigned 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, cane, or walker. Id. A maximum 30 percent rating is assigned where an unrepaired or failed repair of a complete ligament tear causes persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Alternatively, a 30 percent rating is assigned 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. 1. A compensable rating for limitation of flexion of the leg with residuals, stress fracture of the right tibia, prior to February 26, 2018 The Board previously denied a compensable right leg disability rating for the period on appeal prior to February 26, 2018. However, the parties to the Joint Motion for Remand (JMR) agreed that the Board failed to consider favorable evidence showing that a minimum compensable rating (i.e., 10 percent) is warranted under 38 C.F.R. § 4.59 for painful motion. Specifically, the parties noted that VA treatment records from September 2015 and November 2016 show the Veteran sought treatment for right knee pain. Similarly, they noted that the September 2016 VA examiner documented "right tibia pain that worsens after activity." See JMR at 3-4. The Board has carefully reexamined the record, including the September 2015 and November 2016 VA treatment records and the September 2016 VA examination. The Board finds that the Veteran is entitled to a 10 percent rating under 38 C.F.R. § 4.59 for the entire period on appeal. As a layperson, the Veteran is competent to report subjective symptoms like painful motion of the knee or lower leg. The Board finds his complaints of pain from 2015 and 2016 credible. These lay statements reasonably show that he had "an actually painful, unstable, or malaligned joint" prior to February 26, 2018, even though there was no evidence of pain on movement with range of motion testing on the 2016 VA examination. Petitti v. McDonald, 27 Vet. App. 415, 425 (2015). In the December 2020 decision, the Board found that the Veteran's right leg disability was not manifested by ankylosis of the knee, removal of semilunar cartilage, flexion limited to 30 degrees, extension limited to 5 degrees, malunion of the tibia and fibula, or genu recurvatum during the entire appeal period. See Board Decision at 5-9. Thus, Diagnostic Codes 5256, 5259, 5260, 5261, 5262, and 5263 are not applicable in this case. 38 C.F.R. § 4.71a. The Board also found that assigning a separate rating under Diagnostic Code 5258, for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint, would violate VA's rule against pyramiding. Board Decision at 8-9. The parties to the JMR did not identify any errors in the Board's decision with respect to these findings. The Board therefore incorporates the previous findings by reference here. The Veteran had the opportunity to submit additional evidence and argument in support of his claim following the Court's June 2021 remand. He did not submit any evidence, or identify any other pertinent evidence in the record. He noted the bases for remand set out in the JMR, but did not raise any other arguments. See October 2021 Appellate Brief. Accordingly, resolving any reasonable doubt in the Veteran's favor, a 10 percent rating for limitation of flexion of the leg with residuals, stress fracture of the right tibia, prior to February 26, 2018, is granted. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. A rating higher than 10 percent for limitation of flexion of the leg with residuals, stress fracture of the right tibia, from February 26, 2018 The Board's December 2020 decision denied a rating higher than 10 percent for the right leg disability for the period since February 26, 2018. The existing 10 percent rating for this period is also based on painful motion of the knee under 38 C.F.R. § 4.59. See December 2018 Rating Decision. As discussed above, the Board found that a rating higher than 10 percent was not warranted because the Veteran's disability was not manifested by ankylosis of the knee, removal of semilunar cartilage, flexion limited to 30 degrees, extension limited to 5 degrees, malunion of the tibia and fibula, or genu recurvatum during the entire appeal period (i.e., prior to February 26, 2018 and thereafter). Board Decision at 5-9. The Board also found that assigning a separate rating under Diagnostic Code 5258 would violate VA's rule against pyramiding. Id. at 8-9. The parties to the JMR did not identify any errors with respect to these findings in the prior Board decision. Again, the prior findings are incorporated by reference here. The Veteran had the opportunity to submit additional evidence and argument in support of his claim following the Court's June 2021 remand. He did not submit any evidence or argument aside from the bases for remand set out in the JMR. October 2021 Appellate Brief. In sum, the preponderance of evidence is against a rating higher than 10 percent for limitation of flexion of the leg with residuals, stress fracture of the right tibia, from February 26, 2018. As such, there is no reasonable doubt to resolve in the Veteran's favor in this instance. Gilbert, 1 Vet. App. at 53. 3. A separate 10 percent rating for right knee instability The Board previously found that the Veteran's right leg disability was not manifested by recurrent subluxation or lateral instability. Board Decision at 8. However, the parties to the JMR agree that the Board did not adequately address his lay reports of right knee instability. Specifically, he reported that "his leg 'goes out' regularly" during an April 2011 VA behavioral health intake evaluation. Another April 2011 VA treatment report notes "increasing pain ... in right leg with leg giving out intermittently." At his July 2017 Board hearing, he testified that he cannot walk very long distances and if he turns, his knee will "go out from under [him] or do [a] high popping noise." He estimated that he lost his balance about 15-20 times per month. JMR at 5. The Veteran did not submit any other evidence or argument regarding instability following the Court's June 2021 remand. The Board finds the Veteran's lay statements above competent and credible. They reasonably show that he experienced at least some knee instability, even though there was no clinical evidence of lateral instability during the September 2016, February 2018, and December 2019 VA examinations. English, 30 Vet. App. at 352-53. Based on the reported frequency and severity of these symptoms, the Board finds that his instability is best characterized as "slight" under the ordinary, dictionary definition of the term. Accordingly, resolving any reasonable doubt in his favor, a separate 10 percent rating for right knee instability, for the entire period on appeal, is granted. Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Service connection for lumbosacral strain as secondary to a right leg disability Finally, the parties to the JMR agreed that the Board relied on an inadequate VA back examination in denying service connection as secondary to the service-connected right leg disability. This is because the December 2019 VA examiner "failed to provide any clear rationale or analysis for the question of aggravation." JMR at 6-7; see El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (an adequate VA medical opinion on secondary service connection must address causation and aggravation separately). Remand to the agency of original jurisdiction for a new examination and opinion is therefore warranted. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matter is REMANDED for the following action: 1. Schedule an examination to assess the nature and etiology of the Veteran's claimed low back disability. After reviewing the claims file (including this remand), examiner must address the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed low back disability is proximately due to his service-connected right leg disability? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed low back disability is aggravated beyond its natural clinical course by his service-connected right leg disability? 2. Review the medical opinion above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Readjudicate the Veteran's claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.