Citation Nr: 21015576 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 09-43 249 DATE: March 17, 2021 ORDER An initial rating higher than 10 percent for residuals of a left fibula fracture, prior to May 16, 2014, and higher than 20 percent thereafter is denied. A separate 10 percent rating for symptomatic residuals of left knee meniscus debridement is granted. From August 22, 2014, a total disability rating based on individual unemployability (TDIU) is granted. From August 22, 2014, Special Monthly Compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. Prior to May 16, 2014, the Veteran’s residuals of a left fibula fracture are manifest by slight knee disability. 2. From May 16, 2014, the Veteran’s residuals of a left fibula fracture are manifest by moderate ankle disability. 3. The Veteran’s left knee meniscus debridement is symptomatic, including pain and loss of motion. 4. From August 22, 2014, the Veteran’s service-connected PTSD prevents him from obtaining and maintaining substantially gainful employment. 5. The Veteran has been granted a TDIU based solely on his PTSD and he has additional disabilities with a combined rating greater than 60 percent disabling. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for residuals of a left fibula fracture, prior to May 16, 2014, and higher than 20 percent thereafter 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). 2. The criteria for a separate 10 percent rating for symptomatic residuals of left knee meniscus debridement are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5259. 3. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. 4. The criteria for special monthly compensation at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Marine Corps from June 1997 to February 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2014, July 2017, and January 2019, the Board remanded this matter for further development. In October 2013, the Veteran testified in support of this appeal during a hearing held at the Waco, Texas RO before the undersigned Veterans Law Judge. The Veteran has not raised any issues with the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board … to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Left Fibula Fracture Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Whereas here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for different periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability have exhibited signs or symptoms that would warrant different ratings under the rating criteria. The Veteran contends that the severity his residuals of left fibula fracture warrants a higher rating. His residuals of left fibula fracture are assigned a 10 percent initial rating prior to May 16, 2014, and a 20 percent rating thereafter 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 an initial rating higher than 10 percent prior to May 16, 2014, and higher than 20 percent thereafter. 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 base. 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. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. Id. 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 (Fec. Cir. 2003). Accordingly, “slight” is defined as “lacking in strength or substance.” See Merriam-Webster.com Dictionary, (March 15, 2021), https://www.merriam-webster.com/dictionary/slight. “Moderate” is defined as “limited in scope or effect: not violent, severe, or intense.” See Merriam-Webster.com Dictionary, (March 15, 2021), https://www.merriam-webster.com/dictionary/moderate. “Marked” is defined as “having a distinctive or emphasized character.” See Merriam-Webster.com Dictionary, (March 15, 2021), https://www.merriam-webster.com/dictionary/marked. The question of whether a particular degree of disability is slight, moderate, or marked is ultimately a legal rather than 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, an April 2008 VA examination showed the Veteran to exhibit full range of motion of his left knee with increased pain after repetitive use. The ankle was not examined, and the Veteran did not report any flare-ups. In May 2014, the Veteran underwent an examination for his left ankle. He exhibited plantar flexion to 40 degrees with pain at 30 degrees and dorsiflexion to 15 degrees with pain at 10 degrees. There was no change after repetitive use, the Veteran reported no flare-ups, and ankylosis was not found by the examiner. After remand, the Veteran underwent another knee examination in September 2016. At this examination he exhibited flexion to 120 degrees and extension to zero degrees, with no pain reported on examination. No additional loss of motion was found after repetition and the examiner was unable to provide an estimate of range of motion during a flare-up without resorting to speculation. The examiner found no joint instability or ankylosis. It was noted that the Veteran regularly uses a cane for support due to his back and bilateral knee conditions. The Veteran’s knees were examined again in September 2017. He exhibited flexion to 135 degrees and extension to zero degrees with no pain reported on examination. No flare-ups were reported by the Veteran and there was no additional loss of range of motion after repetition. The examiner noted no history of lateral instability or recurrent subluxation and joint stability testing revealed no joint instability. The Veteran was also found to have no ankylosis of the left knee. It was noted that the Veteran regularly uses a cane due to his left knee. The examiner assessed the Veteran’s fibula fracture to have healed with no residual functional deficit. In February 2020, after another remand, the Veteran underwent a VA examination of his left knee. He exhibited flexion to 85 degrees and extension to zero degrees. Limitation after repetition was described as 75 degrees for flexion and zero degrees for extension. Range of motion during a flare-up was estimated to be 80 degrees for flexion and 5 degrees for extension. The examiner found no joint instability or ankylosis. Moderate recurrent patellar dislocation was found on his left side and it was noted that the Veteran uses a cane due to residuals of his left fibula fracture. In November 2020, the Veteran underwent another VA examination of his left ankle. He exhibited dorsiflexion to 10 degrees and plantar flexion to 30 degrees. Pain was noted on examination that caused functional loss. No additional loss of range of motion was observed after three repetitions. Functional loss in terms of range of motion was described as dorsiflexion to 5 degrees and plantar flexion to 25 degrees. No ankylosis or shin splints were found by the examiner. The examiner noted that the Veteran does not use an assistive device as a normal mode of locomotion. In October 2017, VA treatment records show muscle strength testing of the left ankle which was normal for both dorsiflexion and plantar flexion. Based on the foregoing, the Board finds that an initial rating higher than 10 percent prior to May 16, 2014, is not warranted. and a rating higher than 20 percent thereafter is not warranted. Prior to May 16, 2014, the Veteran’s residuals of left fibula fracture were manifest as slight knee disability. The Veteran exhibited range of motion that was not compensable under the DCs for limited motion of the knee along with pain on motion. Based on the range of motion findings, in comparison to the normal range of motion of the knee indicated in 38 C.F.R. § 4.71a, Plate II, the Board concludes that such limitation in flexion and extension of the left knee represents no worse than slight 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 moderate knee or 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, an initial rating higher than 10 percent is not warranted under DC 5262. A higher rating of 20 percent cannot be awarded earlier than the VA examination that revealed a moderate ankle disability. Prior to this examination, the Veteran’s VA treatment records are silent for any reports of limited motion or pain in the ankle. As the date of the May 2014 VA examination is the earliest date it is factually ascertainable that the Veteran had an ankle disability, the Board cannot award a 20 percent rating based on that ankle disability any earlier. After May 16, 2014, a rating higher than 20 percent cannot be awarded. Based on the range of motion findings, in comparison to the normal range of motion of the knee and ankle indicated in 38 C.F.R. § 4.71a, Plate II, the Board concludes that such limitation in dorsiflexion and plantar flexion of the left ankle and flexion in the left knee 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 knee or 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 knee or ankle disability. Accordingly, the Board does not find that the Veteran’s left fibula fracture manifested by malunion with marked knee or 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 a higher or additional rating for the residuals of his left fibula fracture under other DCs for the knee. The Board finds that a separate rating is warranted for symptomatic residuals of the Veteran’s left knee meniscal debridement and will address that below. The Board has also considered whether the Veteran is entitled to a higher rating under 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 residuals of 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 10 degrees dorsiflexion and 30 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 dis ability 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 an initial rating higher than 10 percent prior to May 16, 2014, and higher than 20 percent thereafter for the Veteran’s service-connected residuals of left fibula fracture have not been met. 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 Vet. App. 49 (1990). Separate Rating for Symptomatic Residuals of Left Knee Meniscus Debridement Though a higher rating is not available under the rating criteria for impairment of the tibia and fibula, a separate rating is available based on symptomatic residuals of the Veteran’s left knee meniscus debridement. DC 5258 assigns a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion of the joint. DC 5259 assigns a single 10 percent rating for symptomatic removal of the semilunar cartilage. An April 2008 VA examination notes that the Veteran had debridement of his left meniscus tear. The Veteran has consistently reported pain and a locking sensation in his left knee. Furthermore, it is noted in multiple VA examinations that the Veteran uses a cane for his left knee disability. Therefore, the evidence establishes that the Veteran’s removal of cartilage remains symptomatic, and a separate 10 percent rating under DC 5259 is warranted for his left knee. The 20 percent rating is not appropriate because the Veteran lacks all the necessary criteria. Though the Veteran has reported pain and locking of his left knee, the claims file lacks any evidence of effusion. The Veteran needs to exhibit pain, locking, and effusion for a rating under DC 5258 to be available. Without evidence of effusion, a rating under DC 5258 is not warranted. TDIU In July 2016, the Veteran applied for increased compensation based on unemployability. The Veteran included bilateral knees as a disability that precludes him from obtaining and maintaining substantially gainful employment. As long as an increased rating claim remains pending, there is a pending TDIU claim with the increased claim. See Rice v. Shinseki, 22 Vet. App. 447, 454–55 (2009). Accordingly, the Board assumes jurisdiction over a claim for a TDIU. The Board notes that from July 1, 2016, the Veteran has had a combined disability rating of 100 percent. This though does not moot the Veteran’s TDIU claim as a separate award of TDIU based on a single disability may form the basis for an award of special monthly compensation. As a preliminary matter, the Veteran was employed for most of the period on appeal. As a TDIU requires a finding that the Veteran is unable to obtain or maintain substantially gainful employment, evidence that the Veteran was employed signals that the Veteran could maintain gainful employment. In his July 2016 application for a TDIU the Veteran reports that he was employed from March 2008 to August 2014, and then for a period of less than one month from June 2015 to July 2015. As such, the Veteran is ineligible for a TDIU for the period of March 2008 to August 2014. The Board will address below the Veteran’s eligibility for TDIU during his less than one month of employment from June 2015 to July 2015. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). From August 2014, the Veteran is service connected for posttraumatic stress disorder (PTSD) with depression and anxiety, obstructive sleep apnea, radiculopathy of the left lower extremity, residuals of a left fibula fracture, right shoulder impingement, chronic lumbar strain, left shoulder disorder, right knee patellofemoral pain syndrome, left knee patellofemoral pain syndrome with meniscal tears, symptomatic residuals of left knee debridement, chronic esophagitis, seborrheic dermatitis, narcolepsy with insomnia, degenerative disc disease of the cervical spine, rhinitis, hypertension, left knee scar, migraine headaches, left wrist carpal tunnel, and right wrist carpal tunnel. The Veteran’s combined rating was 90 percent, and his obstructive sleep apnea is rated as 50 percent disabling. As such, he meets the schedular criteria for a TDIU. The Central inquiry in determining whether a TDIU is warranted is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.16, 4.19. Upon review of all evidence of record, the Board finds that the most probative evidence of record demonstrates that the Veteran is unemployable due to his service-connected disabilities. In January 2015, the Veteran reported that he his depression, anger, and irritability continued. He also reported that he was often falling asleep during the day and feels tired. The Veteran’s wife reported that the Veteran would spend most of the day laying around doing nothing and is angry all the time. Some improvement in his irritability was seen in February 2015. In April 2015, the Veteran reported he was getting more confused, sleep walking, tired, and suffered short term memory loss. In September 2016, the Veteran underwent a VA examination for his PTSD. The examiner listed his symptoms as depressed mood, anxiety, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran’s depressive symptoms were exacerbated in 2014 when he was fired from a job that he enjoyed. The examiner found that the Veteran’s depressive symptoms likely impact occupational functioning noting that amotivation, cognitive impairment (e.g. concentration issues), indecisiveness, and fatigue would likely notably reduce occupational functioning. The Veteran underwent another examination for his PTSD in November 2016. This examiner found the Veteran’s symptoms of PTSD to be depressed mood, anxiety, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood, neglect of personal appearance and hygiene, and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran reported in his application for TDIU that he completed four years of college and last worked in July 2015. He has a work history solely in aircraft maintenance. Based on this evidence, the Board finds that the Veteran’s service-connected PTSD precluded him from substantially gainful employment from August 23, 2014. This date is the day after when the Veteran was fired from a job that he enjoyed, which the September 2016 VA examiner noted to exacerbate the Veteran’s PTSD symptoms. At the examination, the Veteran was found to have difficulty in establishing and maintaining effective work and social relationships. Furthermore, the Veteran’s concentration issues, indecisiveness, and fatigue would interfere with his ability to work in an unsupervised setting and could make his work environment dangerous to himself and others. Considering the Veteran’s work experience, education, and functional impairment, the Board concludes that the Veteran’s PTSD precludes him from any substantially gainful employment. The Board notes that the Veteran was employed for a period of less than one month from June 2015 and July 2015. In his September 2016 VA examination, the examiner noted that the Veteran left this job because he was having difficulty staying awake during the required three-week job training. The Veteran had left the job due to a symptom of his PTSD, fatigue, and was unable to maintain the job for a full month. As such, the Board finds this less than one-month period of employment to constitute marginal employment on a fact found basis and as such the grant of TDIU should include this period. 38 C.F.R. § 4.16(a). Accordingly, the Board finds that a TDIU is granted effective August 23, 2014. SMC at the Housebound Rate SMC is payable if a veteran is housebound. 38 U.S.C. § 1114(s). To be found “statutorily” housebound, a veteran must have a single service-connected disability rated as total and have an additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). As noted above, the Veteran has been granted a TDIU based solely on his service-connected PTSD. An award of a TDIU predicated solely on a single disability may form the basis for an award of special monthly compensation. Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran has other disabilities that when combined meet the 60 percent threshold to be “statutorily” housebound. 38 C.F.R. § 4.25. Based on the TDIU assigned for PTSD as well as the combined rating of the Veteran’s other service-connected disabilities, the Veteran meets the statutory criteria for SMC at the housebound rate. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.