Citation Nr: 21007059 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-17 694 DATE: February 8, 2021 ORDER A rating in excess of 10 percent for the service-connected residuals of a gunshot wound to the left leg, to include residuals of a chip fracture and cortical left tibia, is denied. Entitlement to a separate compensable rating of 10 percent, but no higher, based on paralysis of the left external popliteal nerve is granted, subject to the terms and conditions regarding awards of monetary benefits. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran’s service-connected residuals of a gunshot wound to his left leg, to include residuals of a chip fracture and cortical left tibia, been manifested by more than slight instability. 2. For the appeal period, paralysis of the Veteran’s left external popliteal nerve has been described as mild incomplete. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the service-connected residuals of a gunshot wound to the left leg, to include residuals of a chip fracture and cortical left tibia, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code (DC) 5257. 2. The criteria for a separate compensable rating of 10 percent, but no higher, based on paralysis of the external popliteal nerve have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124a DC 8521. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to October 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a February 2013 rating decision which, in pertinent part, denied the Veteran’s claim for a compensable rating for residuals of his service-connected gunshot wound to the left leg. Subsequently, in March 2018 and September 2019, the Board remanded this appeal for further evidentiary development. Increased Rating – Left leg Disability ratings are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s left lower extremity disability is currently rated under 38 C.F.R. § 4.71a, DC 5257 for joint instability. During the appeal, in a June 2019 rating decision, he was granted a compensable rating of 10 percent for the residuals of a gunshot wound to his left leg, effective June 28, 2012. However, the 10 percent rating under DC 5257 was assigned pursuant to 38 C.F.R. § 4.59, which allows the minimum compensable rating for a particular joint to be assigned (10 percent for a knee) when painful motion of the joint is shown. He contends that he is entitled to a higher disability rating. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. For moderate recurrent subluxation or lateral instability, a 20 percent rating is warranted and for severe recurrent subluxation or lateral instability, a 30 percent rating is warranted. 30 percent is the maximum rating available under DC 5257. 38 C.F.R. § 4.71a, DC 5257. Limited motion of a leg disability can be rated under DC 5260 or DC 5261. Limitation of flexion is rated under DC 5260. A noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71. According to this guidance, normal extension and flexion of the knee ranges from 0 to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but separate compensable pathology must be shown. VAOGCPREC 9-2004. Other DCs relating to the leg are DC 5256 for ankylosis; DC 5258 for dislocated meniscus with frequent locking, pain, and effusion; DC 5259 for symptomatic removal of semilunar cartilage (meniscus); DC 5262 for impairment of tibia and fibula; and DC 5263 for genu recurvatum. Those conditions are not shown on examination or in the medical evidence of record during the appeal period, and the Board finds that application of these DCs is not warranted. 38 C.F.R. § 4.71a. In July 2012, the Veteran was afforded a VA examination. He reported experiencing tingling and pain in his left leg, but stated that he does not experience any catching, locking, or giving way with his left knee. Further, he did not report experiencing any flare-ups. The examiner noted that the Veteran walked without a limp, was able to perform a full squat, and that there was no deformity, tenderness, or instability. His range of motion testing was normal, with no limitation of motion for flexion or extension and no objective evidence of painful motion. After repetitive use testing, his flexion and extension range of motion remained normal, and he did not experience any functional loss or impairment. There was no tenderness or pain on palpation and strength and stability tests were both normal. There was no evidence or history of patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, tibial or fibular impairment, or meniscal conditions. The examiner noted that the Veteran has two scars related to his gunshot wound, neither of which is painful nor unstable. He does not use any assistive devices and there was no evidence of degenerative or traumatic arthritis. No other pertinent physical findings were found during the examination and the examiner opined that the Veteran’s leg disability did not impact his ability to work. At a May 2019 VA examination, the Veteran reported that he experiences pain daily with activity and tingling in his left leg, but he did not report experiencing flare-ups. The examiner noted that the Veteran walked with a mild limp, was able to perform a full squat, and get in and out of a chair, but he did experience pain during these activities. Initial range of motion testing was normal for flexion and extension. Pain was noted during flexion, but the pain did not result in functional loss. There was also evidence of pain with weight bearing but no localized tenderness or pain on palpation and no crepitus. Repetitive-use testing showed there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive-use testing, but the examination was medically consistent with his statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength tests were normal, and there was no muscle atrophy or ankylosis found. The Veteran does not have a history of recurrent subluxation, lateral instability, or recurrent effusion and his joint stability tests were normal. There was no evidence or history of patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, tibial or fibular impairment, or meniscal conditions. The examiner noted that the Veteran has two scars related to his gunshot wound, neither of which is painful nor unstable. He does not use any assistive devices and there was no evidence of degenerative or traumatic arthritis. No other pertinent physical findings were found during the examination and the examiner opined that the Veteran’s leg disability did not impact his ability to work. In December 2019, the Veteran was afforded another VA examination. He reported experiencing occasional left knee pain and tingling in his scars. He did not report experiencing flare-ups or having any functional loss or impairment due to his left leg. His initial range of motion testing was as follows: flexion was 0 to 130 and extension was 130 to 0. Pain on examination was noted during flexion, but it did not result in functional loss. There was no objective evidence of localized tenderness or pain on palpation, no pain with weight bearing, and no crepitus. Additionally, there was no loss of function or range of motion with repetitive use testing. He was not examined immediately after repetitive use testing, but the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use. The Veteran’s muscle strength was normal, and there was no muscle strength reduction, atrophy, or ankylosis. He does not have a history of recurrent subluxation, lateral instability, or recurrent effusion and his joint stability tests were normal. There was no evidence or history of patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, tibial or fibular impairment, or meniscal conditions. The examination also included evaluation of any muscle injury caused by the gunshot wound to the left leg. The examiner noted that the Veteran has a penetrating injury to Muscle Group XII of his left foot and leg. However, the injury did not affect muscle substance or function and there were no signs or symptoms of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. Further, there was no evidence of any fascial defects or atrophy and his muscle strength was normal. Additionally, the examination included an evaluation for peripheral nerve conditions related to his gunshot wound. The Veteran reported experiencing mild intermittent pain and mild paresthesia and/or dysesthesias, but no numbness. The examiner confirmed the Veteran’s diagnosis of peripheral neuropathy. The reflex examination of the Veteran’s knee and ankle was normal, but sensory testing revealed decreased sensation of the left thigh/knee, lower leg/ankle, and foot/toes. His gait was normal, and no trophic changes were found. Nerve testing showed mild incomplete paralysis of his external popliteal nerve. The examiner noted that the Veteran has two healed scars related to his gunshot wound, neither of which is painful nor unstable. The Veteran does not use any assistive devices, and there was no evidence of degenerative or traumatic arthritis. The examination did not reveal any other pertinent physical findings, and the examiner opined that the Veteran’s residuals of a gunshot wound to the left leg did not impact his ability to work. In a September 2020 VA addendum opinion requested by the RO, the examiner who provided the May 2019 VA examination was asked whether the peripheral neuropathy of the Veteran’s left femoral nerve was related to his gunshot wound. The examiner opined that there was insufficient evidence of peripheral nerve damage in the Veteran’s left lower extremity and that, based on the current available information, it is less likely than not that the Veteran has identifiable damage to the peripheral nerve in his left lower extremity. However, the examiner opined that it is as likely as not that the discomfort and paresthesia of the Veteran’s left lower extremity is related to his service-connected gunshot wound, even without identifiable damage to the peripheral nerve in his left lower extremity. No medical treatment records associated with the claims file indicate that the Veteran’s left lower extremity symptoms are more severe than those exhibited on VA examinations during the appeal period. Given the above, the Board finds that the residuals of a gunshot wound to the Veteran’s left leg has not met the criteria for a rating in excess of 10 percent at any time during the appeal period. While he is currently rated at 10 percent under DC 5257 for joint instability, this rating is based on painful motion of his knee, pursuant to 38 C.F.R. § 4.59. However, joint stability testing throughout the appeal period has been consistently normal. There is no evidence of record of joint instability of the Veteran’s left knee, and, therefore, a higher rating based on joint instability is not warranted. Additionally, a compensable rating based on limitation of motion is not warranted. A compensable rating based on limitation of motion would require, at a minimum, flexion limited to 45 degrees and extension limited to 10 degrees. See 38 C.F.R. § 4.71a, DCs 5260, 5261. The Veteran has not exhibited such limited range of motion at any time during the period on appeal. The Board must also consider whether an increased rating could be assigned on the basis of functional loss due to the Veteran’s subjective complaints of pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-205 (1995). The United States Court of Appeals for Veterans’ Claims (Court) clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially “absurd results.” Id. at 43. Here, the Veteran has reported pain in his left leg and knee during activity. However, repetitive motion testing has not been shown to cause such additional limitation of motion as to suggest that the flexion or extension in his left knee was functionally limited to a level warranting even a compensable schedular rating. Moreover, pain was not shown to occur prior to the stopping points at a compensable range of motion with regard to either flexion or extension. In addition, entitlement to separate compensable ratings based on the Veteran’s muscle injury and peripheral neuropathy have been raised by the record. He has consistently reported experiencing tingling in his left leg throughout the appeal period. And he has a documented injury to Muscle Group XII of his left leg as a result of his gunshot wound. Under DC 5312, the ratings available for impairment of Muscle Group XII are as follows: a muscle injury characterized as slight warrants a noncompensable rating; a moderate injury warrants a rating of 10 percent; a moderately severe injury warrants a rating of 20 percent; and a severe injury warrants the maximum rating of 30 percent. 38 C.F.R. § 4.73, DC 5312. Throughout the appeal period, the Veteran’s muscle strength has been consistently reported as normal, and there has been no evidence of atrophy. Further, at the December 2019 VA examination, the examiner reported that the gunshot wound to the Veteran’s left leg does not affect muscle substance or function and that there were no signs or symptoms of loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, or uncertainty of movement. Thus, there is no evidence of record to warrant a separate compensable rating for impairment of Muscle Group XII as a result of the gunshot wound to the Veteran’s left leg. Moreover, DC 8521 provides the ratings available for paralysis of the external popliteal nerve. Mild incomplete paralysis warrants a rating of 10 percent. Moderate incomplete paralysis warrants a rating of 20 percent. Severe incomplete paralysis warrants a rating of 30 percent. And finally, complete paralysis warrants the maximum rating of 40 percent. 38 C.F.R. § 4.124a, DC 8521. The December 2019 VA examination report states that the Veteran has mild, incomplete paralysis of his left external popliteal nerve. Further, in the September 2020 addendum opinion, the examiner opined that the discomfort in, and paresthesia of, the Veteran’s left lower extremity is related to his service-connected gunshot wound. Therefore, a separate compensable rating based on paralysis of the external popliteal nerve of 10 percent, but no higher, is warranted. The Board has also considered the other diagnostic codes pertaining to the knee and leg. However, the gunshot wound to the Veteran’s left leg has not resulted in symptoms such as ankylosis, meniscal conditions, or genu recurvatum that would warrant compensation under the other diagnostic codes of the knee and leg. In reaching these conclusions, the Board has considered the assertions of the Veteran as to his symptomatology and the severity of his conditions. However, to the extent the Veteran believes that he is entitled to higher ratings than assigned herein, the Board concludes that the findings during medical evaluations are more probative than are his lay statements. Furthermore, the Veteran’s assertions regarding the severity of his left lower extremity condition are generally consistent with the ratings currently assigned and with the findings on VA examinations. As such, the Board has considered the assertions of the Veteran, but has also relied heavily on VA examinations, which duly consider his subjective symptoms and do not show limitation of function approximating the criteria for higher ratings. As such, the Board finds that there is sufficient evidence of record to warrant a separate compensable rating under DC 8512 for the mild incomplete paralysis of the Veteran’s external popliteal nerve, related to his gunshot wound. To this extent only, the appeal is granted. However, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the service-connected residuals of a gunshot wound to the left leg based on left knee instability—or for separate compensable evaluations based on other symptomatology, to include, for example, limitation of motion (including pain) and muscle impairment. As the preponderance of the evidence is against this portion of the appeal, this claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.