Citation Nr: 21022523 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-18 207 DATE: April 16, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for left below the knee amputation is denied. Entitlement to a rating in excess of 20 percent for osteomyelitis of the left tibia and fibula is denied. FINDINGS OF FACT 1. The Veteran’s left below the knee amputation is manifested as an amputation at a lower level, permitting prosthesis. 2. The Veteran’s service-connected osteomyelitis has not been productive of involucrum or sequestrum, with or without discharging sinus. CONCLUSIONS OF LAW 1. The criteria for evaluation to a disability rating in excess of 40 percent for left below the knee amputation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 5165. 2. The criteria for a rating in excess of 20 percent for service-connected osteomyelitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, DC 5000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1976 to December 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board videoconferencing hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. By way of procedural history, these claims have previously come before the Board in February 2016 and again in December 2017. In February 2016, the Board remanded the claims as the Veteran requested a hearing in the VA Form 9. Thereafter, the matter came back before the Board in June 2017 when a Board hearing was held. A decision was issued in December 2017 remanding the issues for further development. Specifically, the issues presently before the Board were remanded for new VA examinations as the Veteran contended worsening of his service-connected disabilities. On remand, the issues for service connection for his right hip and acquired psychiatric disorder were granted in a June 2020 rating decision. Therefore, these claims are not before the Board. INCREASED RATING Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). FACTUAL BACKGROUND In January 1978, the RO issued a rating decision granting service connection for residuals, fracture, left tibia with below knee amputation. The Veteran was issued a 40 percent disability rating, effective December 22, 1977. In August 2011, the Veteran filed the present appeal for an increased rating for service-connected left leg amputation and osteomyelitis. As the Veteran is not appealing the initial rating to his service-connected disabilities, the Board will consider evidence as early as one year of the August 2011 filed claim. In December 2011, the Veteran underwent a VA examination for amputations and another VA examination for osteomyelitis. These examinations will be further discussed below. See December 2011 VA Amputations Disability Benefits Questionnaire (DBQ), December 2011 VA Osteomyelitis DBQ. In December 2011, the Veteran had imaging completed on his left leg. Here, it was shown that there was a below the knee amputation and no evidence of osteomyelitis or other major abnormality. See December 2011 VA Imaging. The Veteran sought private medical treatment for back pain. Within the records, the Veteran reported suffering from phantom left leg pain. See May 2014 Private Comprehensive Pain Specialist Progress Note. During the June 2017 Board hearing, the Veteran testified that he suffers from phantom pains and muscle spasms in his left leg. In addition, the Veteran testified that a higher evaluation should be warranted due to his pain experienced in his back. See June 2017 Hearing Transcript. As for his osteomyelitis, the Veteran testified that he suffers from pain. See id. RA Amputation The Veteran contends that he is entitled to a higher rating for his left below the knee amputation. Currently, the Veteran has a 40 percent disability rating for his left below the knee amputation under DC 5165. Under DC 5165, a 40 percent rating is assigned for amputation at a lower level, permitting prosthesis. 38 C.F.R. § 4.71a, DC 5165. The Veteran has also been awarded special monthly compensation (SMC) for anatomical loss of one foot for the entire appeals period. Under, DC 5164, a 60 percent rating is assigned for amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.71a, DC 5164. Also, in February 2021 a change occurred as to the musculoskeletal regulations. However, importantly, the regulations applicable in this decision were not affected. The Veteran was afforded two VA examinations, one in December 2011 and the other in March 2018. In the December 2011 VA examination report, it was noted that the Veteran had a left below the knee amputation in 1977. The examiner reported that the amputation site allowed for a suitable prosthetic. The Veteran was noted to also use a cane as an assistive device constantly for ambulation. See December 2011 VA Amputations DBQ. In the March 2018 VA examination report, it was similarly noted that the Veteran has a left below the knee amputation in 1977. The amputation site allows the use of a suitable prosthetic. Overall, it was noted that the Veteran uses a left leg prosthetic constantly along with a cane. See February 2018 VA Amputations DBQ. The Veteran’s left below the knee amputation is best approximated by the 40 percent criteria under DC 5165; the highest disability rating, where the evidence demonstrates that the amputation site allows for the use of a prosthesis. Essentially, a 60 percent disability rating under DC 5164 has been considered but the Veteran’s left below the knee amputation is improvable by prosthesis controlled by natural knee action as indicated in the VA examinations afforded to him. See 38 C.F.R. § 4.71a.; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). At his hearing, the Veteran testified that his right knee and hip disability were due to his service-connected left below the knee amputation. Since then, the Veteran has been service-connected for right hip degenerative arthritis, limitation of flexion and right hip degenerative arthritis, impairment of thigh. Both were noted to be associated with his service-connected left below-the-knee amputation. Therefore, the Veteran’s contentions that a higher rating is warranted for right leg pain has been compensated separately and is not at issue in this decision. Thus, the Board finds a 40 percent disability rating under DC 5165 best approximates the Veteran’s left below the knee amputation. 1. Osteomyelitis Here, the Veteran was granted service connection for left leg osteomyelitis in November 1979 and has received a 20 percent rating for the entire period. In August 2011, he filed a claim for increased rating for his service-connected osteomyelitis. Osteomyelitis is rated under Diagnostic Code 5000, which pertains to acute, subacute, or chronic osteomyelitis. A 20 percent rating is assigned for osteomyelitis with discharging sinus or other evidence of active infection within the past five years. A 30 percent rating is assigned for osteomyelitis with definitive involucrum or sequestrum, with or without discharging sinus. A 60 percent rating is assigned for frequent episodes of osteomyelitis with constitutional symptoms. A 100 percent rating is warranted for osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5000. Note (1) to Diagnostic Code 5000 directs that a rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is no percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. Note (2) to Diagnostic Code 5000 directs that the 20 percent rating on the basis of activity within the past five years is not assignable following the initial infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an established recurrent osteomyelitis. To qualify for the 10 percent rating, two or more episodes following the initial infection are required. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating. The Veteran underwent a VA examination in December 2011. Here, the examiner noted that there were symptoms attributed to osteomyelitis. The examiner did note that the Veteran used a cane constantly and reported pain in his hip. It did not specify which hip was resulting in pain. The examiner noted that the Veteran’s functioning was so diminished that amputation with prosthesis would equally serve the Veteran and that an amputation of the left leg below the knee had been completed. Lastly, imaging was completed in connection with the VA examination and it was noted that there was no evidence of osteomyelitis. See December 2011 VA Osteomyelitis DBQ. Then, in August 2018, the Veteran underwent a second VA examination. Here, the examiner noted that the Veteran had a diagnosis of history of left lower leg tibia and fibula osteomyelitis. It was noted that the Veteran’s current osteomyelitis condition was inactive. The examiner found that the Veteran had decreased joint function or range of motion due to osteomyelitis or residuals of treatment in his left knee. The Veteran’s symptoms included pain, swelling, tenderness, and pruritic rash. See February 2018 VA Osteomyelitis DBQ. In order to warrant an increased 30 percent disability rating, the evidence does not indicate that the condition was productive of definitive involucrum or sequestrum, with or without discharging sinus, or frequent episodes with or without discharging sinus. As the record fails to demonstrate discharging sinus or other evidence, a higher rating under Diagnostic Code 5000 for osteomyelitis is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.