Citation Nr: 21009680 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-40 372 DATE: February 23, 2021 ORDER Effective July 30, 2012, a disability rating of 20 percent for right foot strain is granted, but a disability rating in excess of 20 percent is denied. REMANDED A disability rating in excess of 20 percent for right knee strain with shin splints is remanded. A disability rating in excess of 20 percent for left knee strain with shin splints is remanded. FINDING OF FACT From July 30, 2012, the Veteran’s right foot strain has been manifested by a moderately severe disability with indication of swelling on use, but without weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use accentuated, evidence of marked deformity, and characteristic callosities. CONCLUSION OF LAW From July 30, 2012, the criteria for a 20 percent disability rating for right foot strain, but no higher, have been met. 38 U.S.C. §§ 1155, 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5276, 5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 2000 to February 2001. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.§ 1155; 38 C.F.R.§ 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 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. 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. 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. The medical as well as 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. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the DCs predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Also, functional loss due to pain must be supported by pathology and shown through objective observation. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997) (citing 38 C.F.R. § 4.40); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an “opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time”). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. The Court of Appeals for Veterans Claims has held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran’s contentions, treatment records, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran’s right foot strain is rated 10 percent disabling, effective July 30, 2012, and 20 percent disabling, effective October 8, 2019, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5284, foot injuries. Diagnostic Code 5284, which was not affected by recent revisions to the rating schedule, provides the rating criteria for rating foot injuries. Moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. A 40 percent evaluation requires that the residuals be so severe as to result in actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as “moderate,” “moderately severe” and “severe” 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.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The evaluation of the same “disability:” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Affording the Veteran the benefit-of-the-doubt, the Board finds that the 20 percent rating is warranted from July 30, 2012, but a disability rating in excess of 20 percent is not warranted for any period. Initially, the Board notes that the examination reports reflect diagnoses of pes planus and right foot strain, but service connection is only in effect for right foot strain. While the October 2019 examiner opined that her pes planus was not related to her right foot strain, the examiner was not able to differentiate between the symptoms of pes planus and right foot strain since both conditions can present with similar symptoms. Thus, the Board will consider all symptomatology documented in the examination reports and treatment records. The Veteran’s right foot strain was deemed moderate in severity, thus warranting the 20 percent rating that was assigned in contemplation of objective findings of swelling on use, disturbance of locomotion, and interference with standing reflected in the October 2019 C&P examination report. The Board notes, however, that the April 8, 2015 C&P examination report only reflects a diagnosis of pes planus and did not acknowledge or diagnose a right foot strain as reflected in the April 2013 and October 2019 C&P examination reports. Notwithstanding this, the Veteran complained of soreness and pulling on the bottom of feet and heel with standing or walking. She reported pain and excess fatigability with extended walking or standing. There was pain on use of the feet, but no objective findings of swelling on use. The April 2015 examiner found excess fatigability, pain on movement, pain on weightbearing, and lack of endurance associated with her foot disability. The April 2013 C&P examination report reflected subjective complaints of right foot pain with rest, standing, and walking with weakness and fatigability, with objective findings of mild tenderness along the mid third plantar aspect of the right foot. The Board finds that the subjective complaints and objective findings contained in the April 2013 C&P examination report, April 2015 C&P examination report and May and November 2017 VA treatment records, which reflect complaints of pain with weightbearing, are consistent with the objective findings documented at the time of the October 2019 C&P examination and the Board finds that the Veteran’s right foot strain is moderately severe in severity and a 20 percent rating is warranted from July 30, 2012, pursuant to Diagnostic Code 5284. While awarding a 20 percent rating, the Board finds that a 30 percent rating is not warranted for any period contemplated by this appeal, as the subjective complaints and objective findings do not support a finding of severe foot disability. The examination reports and treatment records do not reflect pain on manipulation of the foot, characteristic callouses, extreme tenderness of plantar surfaces, marked deformity, the weight-bearing line does not fall over or medial to the great toe, she does not have inward bowing of the Achilles tendon, and she does not have marked inward displacement and severe spasm of the Achilles tendon on manipulation of the foot. The Veteran has denied flare-ups. The 20 percent rating in effect compensates her for moderately severe symptoms associated with the right foot. The Board also considered whether the Veteran’s disability would warrant a higher disability rating under other diagnostic codes pertaining to the foot but finds that the criteria pertaining to bilateral weak foot, claw feet (pes cavus), metatarsalgia, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones under Diagnostic Codes 5277, 5278, 5279, 5281, 5282, 5283, respectively are not applicable. Pes cavus, metatarsalgia, hallux rigidus, bilateral weak foot, and hammer toe have not been diagnosed. The Board has given consideration to Diagnostic Code 5276 but technically service connection has not been established for pes planus and the criteria are not met for unilateral pronounced or severe flatfoot. While the Veteran has complained of pain with fatigability with extended walking or prolonged standing, the Board finds that her symptoms and any functional limitations are contemplated by the currently assigned 20 percent rating. In this regard, the record reflects that the Veteran has functional limitations with standing and walking, and the 20 percent rating in effect contemplates associated symptomatology. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca v. Brown, 8 Vet. App. 202 (1995). REASONS FOR REMAND Service connection was established for left knee strain and right knee strain, separately rated 10 percent disabling, effective February 8, 2012, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260, limitation of flexion. Compensable flexion was not shown, and the 10 percent ratings were assigned in contemplation of painful motion. See 38 C.F.R. § 4.59. Service connection was also established for shin splints of the right and left leg, rated 0 percent disabling, effective July 30, 2012, pursuant to Diagnostic Code 5262, impairment of tibia and fibula. In an August 2020 rating decision, separate 20 percent ratings were assigned to left knee strain with shin splints and right knee strain with shin splints effective February 8, 2012, pursuant to Diagnostic Code 5262, in contemplation of moderate knee disability. The rating schedule provides for a 10 percent rating with malunion with slight knee or ankle disability; a 20 percent rating with malunion with moderate knee or ankle disability; a 30 percent rating with malunion with marked knee or ankle disability; and, a 40 percent rating with nonunion of, with loose motion, requiring brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Diagnostic Code 5262, tibia and fibula impairment was revised effective February 7, 2021. For medial tibial stress syndrome (MTSS), or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities; a 10 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; a 30 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Malunion of the tibia and fibula is to be evaluated under Diagnostic Codes 5256, 5257, 5260, 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 brace, warrants a 40 percent rating. In October 2019, the Veteran underwent a C&P examination wherein the examiner diagnosed bilateral knee strain and shin splints. The examiner checked the box indicating that his shin splints affect range of motion of the knee. Flexion was to 90 degrees in the right knee and to 85 degrees in the left knee, with no change on repetitive motion testing. The Veteran should be afforded an examination that considers the revised criteria. The matters are REMANDED for the following actions: 1. Associate updated VA treatment records from August 1, 2020. 2. Schedule the Veteran for an orthopedic examination with an examiner with appropriate expertise to assess the severity of her left knee strain with shin splints and right knee strain with shin splints. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the right and left knee should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner should comment on the period of time she has required treatment, to include whether it is less than or more than 12 consecutive months, and whether the shin splint disabilities have been unresponsive to either shoe orthotics or other conservative treatment, and whether the shin splint disabilities have been unresponsive to surgery. The examiner should comment on whether there is nonunion of the tibia and fibula, with loose motion, requiring a brace. (Continued on the next page)   The examiner should comment on the symptomatology associated with her left knee strain with shin splints and her right knee strain with shin splints. The examiner is to provide a statement concerning how the right and left knee disabilities affect her functioning and activities, to include in an occupational setting. The examiner is asked to describe the types of limitations she would experience as a result of her left and right knee disabilities. The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.