Citation Nr: 21006018 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-15 274 DATE: February 3, 2021 ORDER Entitlement to a rating higher than 10 percent for a left leg disability (internal medullary rod screws fixation for comminuted left tibia and fibula fracture) is denied. REMANDED Entitlement to a compensable rating for costochondritis is remanded. FINDING OF FACT The most probative evidence indicates that the Veteran’s left leg disability is manifested by no more than slight knee or ankle disability. CONCLUSION OF LAW [The criteria for a disability rating in excess of 10 percent for shin splints are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.102, 3.159, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1977 to September 1997, including in combat and in the Southwest Asia theater of operations during the Persian Gulf War. These matters are on appeal from a November 2011 rating decision. In December 2015 and February 2018, these matters were remanded by the Board for further development. The claim of entitlement to an increased rating for a left leg disability is now ready for adjudication. Increased Rating Claim Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical and industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2019). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (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 [or 4.73] criteria.”). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran contends that his service-connected left leg disability is more severe than his 10 percent evaluation would indicate. The Veteran’s left leg disability, internal medullary rod screws fixation for comminuted left tibia and fibula fracture, is rated pursuant to Diagnostic Code 5262. Diagnostic Code 5262 pertains to impairments of the tibia and fibula. A 10 percent disability rating is assigned for malunion of these bones with a slight knee or ankle disability. A 20 percent evaluation is warranted for malunion with a moderate knee or ankle disability. A 30 percent disability rating is assigned for malunion with a marked knee or ankle disability. Finally, a 40 percent evaluation is appropriate where there is nonunion of the tibia and fibula accompanied by loose motion requiring a brace. 38 C.F.R. § 4.71a. The words “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. It should also be noted that use of terminology such as “slight” and “moderate” by physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Normal range of motion of the ankle is from zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, on May 2011 VA joints examination the Veteran presented with a history of left knee arthroscopic symptoms including pain and stiffness. Prolonged standing and walking were difficult and he wore knee support braces. Examination of the left knee indicated guarding of movement. Range of motion measurements indicated normal range of motion with pain. Reflex and motor examinations of the left knee and ankle were normal. At that time the Veteran was employed full time with a commercial cleaning service with no significant effects on employment. VA treatment records include a February 2012 report which reflects a complaint of chronic left ankle and knee pain. Range of motion measurements indicated decreased range of motion of the left ankle and full range of motion of the left knee. On July 2016 VA bones examination the Veteran presented with complaints of left ankle, knee, and anterior shin pain. On examination, there was no abnormal bone or joint. There was no swelling, redness, or minimal tenderness on palpation of anterior shin. There was no sign of active infection and weight bearing joint was not affected. There was no evidence in the feet of abnormal weight bearing or evidence of bone disease or malunion of the os calcis or astragalus. Prolonged walking was difficult. The examiner diagnosed left tibia/fibula fracture status post pin placement. Pursuant to the Board’s February 2018 remand, on March 2019 VA bones examination, the Veteran presented with a history of left tibia/fibular fracture which led to left ankle problems. He denied any residual bone pain from his fracture, but stated that his left knee and ankle were affected by the fracture and complained of left ankle pain. He also required a brace to assist with walking. On examination of the left ankle there was no abnormal motion, limitation, flail joint, or false flail joint, but there was pain. On examination of the left knee there was abnormal motion and limitation, but no pain, flail joint, or false flail joint. Gait was antalgic, but there was no evidence of abnormal weight bearing. Prolonged standing and walking were limited. There was no evidence of genu recurvatum, constitutional signs of bone disease, or malunion of the os calcis or astragalus. Regarding employment, it was noted that the Veteran retired in October 2018. The left tibia/fibula fracture caused decreased mobility and had no effects on feeding, bathing, toileting and grooming; a moderate effect on chores, shopping, recreation, traveling, and dressing; and a severe effect on exercise. On March 2019 VA ankle conditions DBQ examination, the Veteran presented with a history of worsening left ankle pain, but denied flare-ups. Functional impairment/loss was described as difficulty ambulating stairs, standing, and walking. Left ankle range of motion was normal and he was able to perform repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use overtime. Although he had left ankle instability, muscle strength testing of the left ankle was normal. There was evidence of pain on passive range of motion testing, but no evidence of pain with non-weight bearing. On March 2019 VA knee conditions DBQ examination range of motion testing of the left knee indicated normal extension and 130 degrees flexion. No pain or tenderness was noted on examination. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. Joint stability testing did not indicate any left knee instability. Range of motion of the left knee was the same with active and passive motion and nonweight-bearing. After review of the evidence, the Board finds that a rating higher than 10 percent for the Veteran’s left leg disability, an internal medullary rod screws fixation for comminuted left tibia and fibula fracture, is not warranted. The evidence of record shows that the Veteran’s left leg disability has been manifested by chronic pain, slightly decreased left knee range of motion, and normal left ankle range of motion. These findings are consistent with malunion of the tibia and fibula with no more than slight knee or ankle disability. Accordingly, a higher rating of 20 percent for the Veteran’s left leg disability is not warranted. In this case, the Veteran is competent to report complaints such as difficulty with prolonged standing and walking and pain, as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating and has taken this contention seriously (this was the basis of the Board’s remand to address this medical question). He is not, however, competent to identify a specific level of disability of his left leg disability according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s left leg disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Costochondritis The Veteran contends that his service-connected costochondritis is more severe than his noncompensable (zero percent) rating would indicate. Unfortunately, another remand is required regarding this claim. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. VA treatment records added to the record in April 2019 include records dated in December 2017 which indicate treatment of chest pressure at UF Shands Jacksonville Hospital, in Jacksonville, Florida. A January 2018 report indicates treatment of chest pain related to costochondritis at “UF Shands.” In February 2018, the Board remanded the claim for a VA medical office to determine the nature and severity of his costochondritis, including whether the disability equated to or involved symptomatology related to the muscles of the chest. The VA medical officer was also asked to state whether the Veteran’s disability was manifested by degenerative arthritis based on x-ray evidence. Pursuant to the Board’s remand, on March 2019 VA examination the medical officer stated that there was no evidence of costochondritis or involvement of muscles of the chest and stated that a chest x-ray was normal. However, if additional private treatment records regarding the Veteran’s costochondritis are obtained, an addendum medical opinion should be obtained (from the March 2019 medical officer, if possible) regarding the nature and severity of the Veteran’s disability. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain any private treatment records related to his costochondritis, including complete records from UF Shands Jacksonville Hospital, in Jacksonville, Florida. In order to expedite this case, the Veteran is asked to obtain these records himself and inform the RO/AMC that all appropriate records have been submitted in order to ensure that all pertinent records have been submitted in a highly timely manner so that the VA may adjudicate this case quickly. 2. If (and only if) additional, pertinent private treatment records regarding the Veteran’s costochondritis are obtained, an addendum medical opinion should be obtained (from the March 2019 VA medical officer, if possible) regarding the nature and severity of this disability, to include whether the disability equates to or involves symptomatology related to the muscles of the chest. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.