Citation Nr: 21011288 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-12 698 DATE: March 1, 2021 ORDER A rating higher than 20 percent for left fibula fracture is denied. REMANDED A separate rating for a left knee disability is remanded. FINDING OF FACT The Veteran’s left fibula fracture manifested by malunion with moderate ankle disability. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for left fibula fracture are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262 (2020), DC 5262 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1994 to December 1994 in the U.S. Marine Corps. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned Veterans Law Judge at a March 2019 Board hearing. A copy of the hearing transcript is of record. In October 2019, the Board denied a rating higher than 20 percent for left fibula fracture and remanded the issue of entitlement to a separate rating for a left knee disability. The Veteran appealed the Board’s denial of a rating higher than 20 percent for left fibula fracture to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Joint Motion for Partial Remand, the Court vacated and remanded the Board’s denial, finding that the Board’s decision failed to provide an adequate statement of reasons and bases. Both issues on appeal have now returned to the Board for appellate consideration. Left Fibula Fracture – Ankle Disability The Veteran contends that the severity of his left fibula fracture warrants a higher rating. His left fibula fracture disability is assigned a 20 percent rating from February 14, 2013 under DC 5262 for impairment of the tibia and fibula. After review of the record, the Board finds that the preponderance of the evidence is against assigning a rating higher than 20 percent at any time during the appeal period. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the 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. 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. Under the rating criteria in effect prior to February 7, 2021, DC 5262 provides that 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, and a 40 percent 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 ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. The Board notes that prior to February 7, 2021, the terms “slight,” “moderate,” and “marked” are not defined in DC 5262. Therefore, the Board finds that a dictionary-based definition of these words is suitable as, in the absence of an express definition in a statute, words are presumptively intended to be given their ordinary meaning. See Terry v. Principi, 340 F.3d 1378, 1382 83 (Fed. Cir. 2003). Accordingly, “moderate” is defined as “limited in scope or effect: not violent, severe, or intense.” See Merriam-Webster.com Dictionary, (February 19, 2021), https://www.merriam-webster.com/dictionary/moderate. “Marked” is defined as “having a distinctive or emphasized character.” See Merriam-Webster.com Dictionary, (February 19, 2021), https://www.merriam-webster.com/dictionary/marked. The question of whether a particular degree of disability is moderate or marked is ultimately a legal rather than a medical one based on the relevant medical and lay evidence. 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”). 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 flareups 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). 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). Turning to the evidence of record, a January 2014 VA examination shows that during initial range of motion measurements and after 3 repetitions, the Veteran’s left ankle dorsiflexion was limited to 10 degrees and plantar flexion limited to 45 degrees. There was no objective evidence of pain on initial examination and there was no additional limitation in range of motion after 3 repetitions. The examiner found that the Veteran had functional loss due to pain on movement of the left ankle and localized tenderness or pain on palpitation of the joints/soft tissue of the left ankle. Muscle strength was normal, and the Veteran did not have instability, ankylosis, or shin splints. The Veteran was tender to palpitation just at superior aspect of the left distal fibular head. The examiner noted that there were no knee complaints and the Veteran did not report flareups. In February 2018, VA treatment records show left ankle dorsiflexion limited to 20 degrees and plantar flexion limited to 50 degrees. Muscle strength testing was normal with the exception of dorsiflexion, which was 4/5. The Veteran was found to have chronic left ankle pain and x-ray showed minimal osteoarthritis and tiny heel spur. In March 2018, the Veteran attended physical therapy for his left ankle. He reported left ankle pain, increased pain with prolonged walking, difficulty walking up 3-4 flights of stairs, and stated that he is no longer able to play sports, is limited with running and lifting heavy things, and unable to tailor sit. Range of motion testing showed left dorsiflexion limited to 8 degrees and plantar flexion limited to 30 degrees. The Veteran’s gait was slightly antalgic with decreased stance phase on the left. The physician noted that the Veteran had decreased range of motion, strength, functional mobility, and proprioception, and had pain and tenderness. During the March 2019 Board hearing, the Veteran testified that he experiences swelling, has difficulty walking on rock terrain, and limitation of motion when driving his manual shift car. He also testified that he had to get rid of his car because he could no longer drive it. Additionally, the Veteran testified that he has not been able to play a full game of softball in years. He also testified that his disability had worsened and increased his pain medication from once to twice per day. The Veteran underwent another VA examination in May 2019. The Veteran was diagnosed with osteoarthritis of the left ankle and status post fracture left fibula. He reported flareups and functional impairment that cause difficulty with pivots, turning, walking, standing, driving, and climbing stairs. Initial range of motion testing showed that the Veteran’s left ankle dorsiflexion was limited to 15 degrees and plantar flexion was limited to 30 degrees. There was objective evidence of pain on dorsiflexion and plantar flexion. Additionally, there was objective evidence of moderate localized tenderness or pain on palpitation of the left lateral malleolus. There was pain with weight bearing and objective evidence of crepitus. Muscle strength testing showed active movement against some resistance. Repetitive-use testing did not result in additional loss of function or range of motion after 3 repetitions; however, the examiner noted that pain and weakness significantly limit functional ability after repeated use over time and during flareups, resulting in dorsiflexion limited to 10 degrees and plantar flexion limited to 20 degrees. The examiner noted that the Veteran’s left side causes less movement than normal, weakened movement, disturbance of locomotion, and interference with standing and walking. He did not have ankylosis or ankle instability. The examiner noted that the Veteran regularly uses a brace for support of the left ankle. Based on the foregoing, the Board finds that a rating higher than 20 percent is not warranted. Significantly, based on the range of motion findings, in comparison to the normal range of motion of the ankle indicated in 38 C.F.R. § 4.71, Plate II, the Board concludes that such limitation in dorsiflexion and plantar flexion represents no worse than moderate limited motion. Although the Veteran experienced flareups, there is no evidence that the flareups caused reduced function or range of motion to a degree that more nearly approximates marked ankle disability. Additionally, the Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to symptoms such as pain and swelling. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating malunion of the tibia or fibula with marked ankle disability. Accordingly, the Board does not find that the Veteran’s left fibula fracture manifested by malunion with marked ankle disability. The evidence also does not show nonunion of the left tibia or fibula with loose motion, requiring a brace. As such, a rating higher than 20 percent is not warranted under DC 5262. The Board has considered whether the Veteran is entitled to higher or additional ratings for the service-connected left ankle disability under other DCs pertaining to the ankle. However, those codes, DCs 5270, 5272, 5273, and 5274, are not for application in the present case as the record is absent for evidence of ankylosis of the left ankle, ankylosis of the left subastragalar or tarsal joint, malunion of the left os calcis or astragalus, or left astragalectomy. Additionally, the Board notes that under DC 5271, 20 percent is the maximum rating available. See 38 C.F.R. § 4.71a. In making its determinations in this case, the Board has carefully considered the Veteran’s contentions with respect to the nature and severity of his service-connected left fibula fracture disability at issue, and notes that his lay testimony is competent to describe certain symptoms associated with this disability. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the more probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran’s statements regarding matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue. As noted above, effective February 7, 2021, the rating criteria for musculoskeletal disabilities were amended. Under the new rating criteria, DC 5262 provides that malunion of the fibula is to be evaluated under DC 5256, 5257, 5260, or 5261 for the knee, or 5270 (ankylosis of the ankle) or 5271 (limitation of motion of the ankle) for the ankle, whichever results in the highest evaluation. Under the new criteria, VA’s intent is that a tibia or fibula malunion be rated as either an ankle or knee disability. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the new criteria, DC 5271 provides a maximum 20 percent rating for marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) for limitation of motion for the ankle. The Board notes that the Veteran’s limitation of motion of the left ankle, at worse, was 8 degrees dorsiflexion and 20 degrees plantar flexion. Accordingly, the Veteran does not meet the rating criteria for a 20 percent rating under the new criteria. However, the Veteran is already in receipt of a 20 percent rating under the old criteria. Additionally, as the medical evidence of record does not show ankylosis of the left ankle or medial tibial stress syndrome, the new rating criteria regarding those conditions does not apply. Moreover, a separate rating may be warranted for a left knee disability under the old rating criteria, which could result in a higher evaluation. Accordingly, the Board finds that the rating criteria in effect prior to February 7, 2021 is more favorable to the Veteran. In conclusion, the Board finds that the criteria for a rating in excess of 20 percent for the Veteran’s service-connected left ankle disability have not been met at any time during the appeal period. As the preponderance of the evidence is against the assignment of a higher rating, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). REASONS FOR REMAND Separate Rating for Left Knee Disability The Board previously remanded the issue of entitlement to a separate rating for a left knee disability to obtain a VA examination to determine the severity of any left knee disability. The Veteran was afforded a VA examination in October 2020. However, the Board finds that the examination is inadequate for adjudication purposes. During the examination the Veteran reported left knee discomfort intermittently, including pain and popping, mainly when it is cold or with acute changes in weather. While the Veteran reported flareups during the examination and throughout the period on appeal, the examiner indicated that the Veteran denied flareups. Accordingly, the Board finds that remand is warranted to obtain a new VA examination to address the Veteran’s reported flareups. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the severity of his claimed left knee disability as it relates to his service-connected left fibula fracture. The claims file must be made available to the examiner and review should be noted. The examiner must elicit a full history of the Veteran’s left knee disability, including flareups. Perform all necessary tests to determine the current nature and severity of the Veteran’s left knee disability. In evaluating the Veteran, the examiner should report the complete range of motion findings for each affected joint. The examiner should indicate whether pain or weakness significantly limits functional ability during flareups or when the measured joints are used repeatedly over a period of time. The examiner should address whether the joints exhibit weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination. The examiner is asked to specifically test the range of active motion, passive motion, weight-bearing motion, non-weightbearing motion, and range of motion measurements of the opposite joint (i.e., the right knee). See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not possible or necessary in this case, he or she should explain why that is so. A complete rationale must be provided for any opinion offered. If any question cannot be answered without resorting to mere speculation, please provide a complete explanation as to why that is so. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.