Citation Nr: 21025175 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 05-29 247 DATE: April 27, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right hip arthritis associated with history of transverse fracture of the distal 1/3 right tibia and fibula with open reduction internal fixation (ORIF) is denied. Entitlement to an initial rating in excess of 20 percent for right knee strain with degenerative changes associated with history of transverse fracture of the distal 1/3 right tibia and fibula, with ORIF, is denied. Entitlement to a rating in excess of 20 percent for history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 1, 2009, is remanded. FINDINGS OF FACT 1. During the period on appeal, the probative evidence is against finding the Veteran’s right hip disability produced flexion limited to 45 degrees, limitation of extension to 5 degrees, or limitation of thigh abduction with motion lost beyond 10 degrees; no ankylosis to include no restriction of motion consistent with ankylosis, or hip flail joint was shown. 2. During the period on appeal, the probative evidence is against a finding that the Veteran’s right knee disability results in ankylosis, to include no restriction of motion consistent with ankylosis, or symptomatic semilunar cartilage removal or semilunar dislocated cartilage; slight lateral instability and extension limited to 10 percent are already considered in the 20 percent currently assigned disability rating throughout the period on appeal. 3. During the period on appeal the Veteran’s history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF, was not manifested by malunion of the tibia or fibula with marked knee or ankle disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the Veteran’s right hip arthritis associated with history of transverse fracture of the distal 1/3 right tibia and fibula with ORIF have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5010-5252, 5253. 2. The criteria for an initial rating in excess of 20 percent for right knee strain with degenerative changes associated with history of transverse fracture of the distal 1/3 right tibia and fibula, with ORIF, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5010-5262. 3. The criteria for a rating in excess of 20 percent for history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to August 1982, and from March 1983 to March 1985. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a rating decisions issued in October 2004, December 2010, and January 2012 by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran’s claims file. This case has a long and complicated procedural history. In pertinent part, an October 2004 rating decision denied an increased rating for the residuals of a fracture of the right tibia and fibula (a December 2010 rating decision subsequently awarded the current 20 percent evaluation); the December 2010 rating decision granted service connection for a right knee disability and assigned an initial 20 percent rating; and the January 2012 rating decision granted an initial rating of 10 percent for a right hip disability. In November 2007, the Board remanded the increased rating claim regarding the residuals of the tibia and fibula fracture for development. Upon completion of this development and the return of the case to the Board in August 2009, the Board determined that further development was required, and again remanded the claim. The Board, in April 2014, November 2016, and May 2018 remanded the claims above for additional development. An April 2020 supplemental statement of the case was most recently issued, and the claims are once again before the Board. The Board notes that the issue of entitlement to additional dependency compensation for Amber, Brittany, and Brandy, separately remanded in February 2021, will be the subject of a separate Board decision. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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 also 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In adjudicating below whether the Veteran meets the criteria for higher evaluations, the Board has not overlooked the Court’s holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016).  1. Entitlement to an initial rating in excess of 10 percent for right hip arthritis associated with history of transverse fracture of the distal 1/3 right tibia and fibula with ORIF. The Veteran is assigned a 10 percent rating for his right hip under DCs 5010-5252. The Veteran contends he is entitled to higher ratings. Standard motion of the hip joint is from 0 degrees extension to 125 degrees flexion and 0 degrees adduction to 45 degrees abduction. 38 C.F.R. § 4.71, Plate II. Under DC 5251, a 10 percent rating is assigned for thigh extension limited to five degrees. 38 C.F.R. § 4.71a. Under DC 5252, a 10 percent rating is warranted where thigh flexion is limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; a 30 percent rating is warranted where flexion is limited to 20 degrees; and a 40 percent rating is warranted for flexion limited to 10 degrees. Id. Under DC 5253, a 10 percent rating is assigned for limitation of rotation of the thigh with the inability to toe-out more than 15 degrees, or limitation of adduction resulting in the inability to cross legs. Limitation of thigh abduction with motion lost beyond 10 degrees warrants a 20 percent rating. Id. An 80 percent rating is awarded when the evidence reflects flail joint of the hip under DC 5254. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic codes pertaining to the hip (excluding hip replacement) were not changed and are not applicable to this case. At a June 2009 VA examination it was noted that the right hip had tenderness, pain at rest, instability, weakness, abnormal motion and guarding of movement. Range of motion testing revealed flexion to 68 degrees, extension to 15 degrees and right abduction to 20 degrees. The examiner noted pain following repetitive motion. Range of motion of flexion was reduced to 60 degrees following repetitive motion. No joint ankylosis was found. The Veteran underwent an additional VA examination in November 2011. Range of motion testing revealed hip flexion to 90 degrees, external rotation to 40 degrees, internal rotation to 20 degrees, and extension to 20 degrees. During the examination there was no limitation by pain, fatigue, weakness or lack of endurance. At a December 2014 VA examination, range of motion testing revealed flexion to 100 degrees, extension to 20 degrees, abduction to 20 degrees and adduction to 0 degrees. It was noted that adduction was limited such that the Veteran cannot cross his legs. External rotation was noted to be to 30 degrees and internal rotation to 25 degrees. It was noted that his range of motion affected the Veteran’s gait. There was evidence of pain with weight bearing. Muscle strength testing revealed normal findings and no muscle atrophy was noted. Additionally, the examiner specifically noted no ankylosis. It was noted that the Veteran used a cane. The Veteran was afforded a February 2017 VA examination. He was diagnosed with degenerative arthritis of the right hip. The Veteran reported right hip pain and difficulty getting up from the sitting position. It was noted that there had been no surgery to the right hip. Range of motion testing revealed flexion to 100 degrees, extension to 20 degrees, abduction and adduction each to 10 degrees, external rotation to 30 degrees and internal rotation to 10 degrees. The examiner noted that adduction was limited such that the Veteran cannot cross his legs. There was evidence of pain with weight bearing, but no evidence of crepitus. Following repetitive testing, flexion was observed to 90 degrees, extension to 20 degrees, abduction to 20 degrees, and adduction to 5 degrees. It was noted that the Veteran’s post-test adduction was limited in such a way that the Veteran cannot cross his legs. External rotation was limited to 20 degrees and internal rotation to 25 degrees. The VA examiner noted that the Veteran’s right hip had less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting and interference with standing. Muscle strength testing revealed slightly decreased findings, however muscle atrophy was not found. There was no ankylosis of his right hip. It was noted that the Veteran used a cane. The Veteran most recently underwent a VA examination of his right hip in July 2019. A diagnosis of right hip osteoarthritis was made. The Veteran reported having steroid injections with minimal help in recent years. It was noted that he had not been considered for right hip surgery in recent years. The Veteran reported that he cannot walk a block and cannot carry beyond 10 pounds because of the pain. Range of motion testing revealed flexion to 70 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 20 degrees, external rotation to 35 degrees and internal rotation to 25 degrees. It was noted that adduction is limited in such a way that that the Veteran cannot cross his legs. Pain was noted on examination and reported to cause functional loss. There was evidence of pain with weight bearing and objective evidence of crepitus. The examiner noted that there was no additional loss of function or range of motion after three repetitions. Over time, his range of motion was predicted to be 60 degrees of flexion, 15 degrees of extension, 15 degrees of abduction, 20 degrees of adduction, 30 degrees of external rotation and 30 degrees of internal rotation. It was noted that post-test adduction limited the Veteran in such a way that he cannot cross his legs. Muscle strength testing revealed normal findings and no muscle atrophy was noted. There was no ankylosis noted. The Board has additionally reviewed extensive treatment records. The evidence described above reflects that there is no hip ankylosis or any restriction of motion consistent with ankylosis which would warrant a higher rating under DC 5250. Additionally, extension limited to 5 degrees has not been demonstrated and a 10 percent rating under DC 5251 is not warranted. The Board additionally finds that a higher rating under DC 5252 for right hip flexion is not warranted as the Veteran does not exhibit 30 degrees of limitation of flexion needed for a 20 percent rating. In fact, the evidence does not support limitation of flexion to 45 degrees which is needed for a 10 percent rating. As such, a higher rating under DC 5252 is not warranted. Additionally, the evidence does not reflect a hip flail joint which would warrant an increased rating under DC 5254. Rather, the evidence above does reflect limitation of adduction to the point that the Veteran cannot cross his legs. This supports a 10 percent rating under DC 5253. Although the Veteran’s current rating of 10 percent during the period on appeal is listed under DC 5252 (presumably due to painful motion as his flexion is not limited to 45 degrees), the evidence instead supports the rating criteria for a 10 percent rating under DC 5253. Separate ratings may be assigned under Diagnostic Codes 5251 (extension), 5252 (flexion), and 5253 (abduction, adduction, or rotation) for disability of the same joint. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. The Board finds that an award of a separate rating of 10 percent under diagnostic code 5253, in addition to the 10 percent already awarded under DC 5252, based solely on painful motion would amount to pyramiding in this case as the Veteran’s symptomatology only supports one 10 percent rating. A rating in excess of 10 percent is not warranted under any diagnostic code for his service-connected right hip and an increased rating is denied. 2. Entitlement to an initial rating in excess of 20 percent for right knee strain with degenerative changes associated with history of transverse fracture of the distal 1/3 right tibia and fibula, with ORIF. The Veteran is rated at 20 percent disabling for the entire period on appeal for his right knee under DCs 5010-5262. It is unclear why DC 5262 was used as the Veteran is in receipt of a separate rating of 20 percent under DC 5262 for his separately service-connected, history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF. He is essentially in receipt of two separate 20 percent ratings under DC 5262. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of leg extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms mild, moderate, and severe are not defined in the 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. It should also be noted that use of terminology such as mild or moderate by VA examiners and others, although an element of 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. Diagnostic Code 5258 addresses cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint, for which a 20 percent disability rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Diagnostic Code 5256 governs ankylosis (complete bony fixation) of the knee, and Diagnostic Code 5262 involves impairment of the tibia and fibula. The Board notes that the criteria under Diagnostic Codes 5257, 5258, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. Under 38 C.F.R. § 4.59, it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. This applies even if arthritis is not shown. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As of February 7, 2021, under the amended criteria, DC 5257 recurrent subluxation or lateral instability requires unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation for a 30 percent rating. For a 20 percent rating you must have one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For a 10 percent rating, sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation must be demonstrated. For patellar instability, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The Veteran underwent a VA examination in June 2004. The examiner noted range of motion of his knee to be 143 degrees of flexion with 0 degrees of extension. Strength was 5 out of 5. At an October 2005 VA examination, range of motion testing revealed flexion to 120 degrees, with pain beginning at 90 degrees. Following repetitive motion, he exhibited 60 degrees of motion. The examiner noted crepitus and no instability. The Veteran attended a VA examination in December 2009. He reported giving way, instability, pain, stiffness, weakness, incoordination, and locking episodes. The Veteran reported the use of a cane at all times. An examination revealed no instability or meniscus abnormality; patellar abnormality consisting of subpatellar tenderness was noted. Range of motion testing revealed flexion to 100 degrees, extension to 0 degrees. The Veteran next attended a VA examination in November 2011. The Veteran reported that his knee cracks, pops, and grinds most of the time. Range of motion was 110 degrees of flexion and 0 degrees of extension. The examiner noted no palpable effusion. The knee was stable to varus/valgus stress, negative to anterior and posterior drawer signs, and there were no palpable areas of tenderness. It was noted that his range of motion and/or joint function is not limited by fatigue, weakness or lack of endurance following repetitive use. At a July 2012 VA examination the Veteran was diagnosed with degenerative joint disease of the right knee. Range of motion testing revealed flexion to 130 degrees, with painful motion beginning at 120 degrees. Extension was to 0 degrees. It was noted that the Veteran was able to perform repetitive-use testing with 3 repetitions. Following repetitive testing he was still able to exhibit 130 degree of flexion. He was additionally able to complete 0 degrees of extension. The examiner noted less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion and interference with sitting, standing and weight-bearing on the right side. Slight reduction in muscle strength testing was noted. Joint stability testing revealed slight reduction with the anterior instability (Lachman Test) and with medial-lateral instability. Posterior instability was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. A meniscal condition was not noted. The examiner noted that the Veteran used a cane. The Veteran underwent an additional VA knee examination in December 2014. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees. Pain was noted on examination. Muscle strength testing revealed normal findings. There was no ankylosis of the right knee. Joint stability testing revealed no recurrent subluxation and no lateral instability. There was evidence of recurrent effusion. Joint stability testing was normal. The examiner noted no meniscal conditions. The Veteran underwent an additional VA examination in February 2017. The Veteran reported that increased activity will cause increased pain and ability to move due to pain and stiffness. Range of motion testing revealed flexion to 110 degrees and extension to 0 degrees. Following repetitive testing the Veteran exhibited 100 degrees of flexion and 0 degrees of extension. It was noted that the Veteran had less movement than normal, weakened movement, swelling, instability of station, disturbance of locomotion, interference with sitting and interference with standing. Muscle strength testing was slightly reduced. There was no muscle atrophy noted. The examiner additionally noted no ankylosis. The examiner noted slightly reduced medial instability testing results. No meniscal conditions were noted. It was noted that the Veteran had undergone surgery in 1980 for ORIF. The Veteran underwent an additional examination in July 2019. It was noted that he wears a brace and has not had any knee injections. Range of motion testing revealed 110 degrees of flexion and 10 degrees of extension. Similar range of motion findings were exhibited following repetitive testing. Muscle strength testing was normal and there was no muscle atrophy noted. The examiner noted no ankylosis. Joint stability findings revealed slight medial instability. There were no meniscal conditions. The Board has additionally reviewed the Veteran’s treatment records during the lengthy period on appeal. As noted above, the Veteran has been awarded a separate 20 percent rating under DC 5262 for his right knee, in addition to a 20 percent rating under DC 5262 for his right leg. The Board notes that a higher rating under DC 5256 is not warranted for his right knee as ankylosis has not been demonstrated at any point during the period on appeal, nor has the Veteran’s motion been so restricted to be consistent with ankylosis. The Board notes that the evidence of record reflects slight instability under the “old” DC 5257 which would warrant a 10 percent rating and extension limited to 10 degrees (as demonstrated on the most recent July 2019 VA examination) which is consistent with a 10 percent rating. The evidence does not have findings consistent with increased ratings under either DC 5258 or 5259. Additionally, limitation of flexion has not been demonstrated to be limited to 45 degrees which would warrant a separate 10 percent rating under DC 5260. The Veteran has already been awarded a 20 percent rating for his knee for the duration of the appeal period. After reviewing the evidence, the Board finds that the evidence only supports at most, and not even for the entire period on appeal, two 10 percent ratings for manifestations of his right knee disability (based on extension and instability), which when combined would form a 20 percent rating. 38 C.F.R. § 4.25. Under no circumstances is a higher rating warranted for the Veteran’s right knee disability, as all of his right knee symptomatology is already considered in the 20 percent rating assigned. Higher ratings additionally would not be warranted under the amended criteria under DC 5257 as they are more restrictive than the old criteria. A rating in excess of 20 percent is not warranted under any diagnostic code for his service-connected right knee and an increased rating is denied. 3. Entitlement to a rating in excess of 20 percent for history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF. The Veteran is rated at 20 percent disabling for the entire period on appeal for his history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF under DC 5262. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under Diagnostic Code 5262, 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 with moderate knee or ankle disability; a 30 percent rating is warranted for malunion with marked knee or ankle disability; and a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. As of February 7, 2021, under the amended criteria, the rater is instructed to evaluate impairment of the tibia and fibula under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, which ever results in the highest evaluated. Medial tibial stress syndrome (MTSS) or shin splints are to be rated 30 percent for those requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; 20 percent for those requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either show orthotics or other conservative treatment, one lower extremity. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). The Board initially notes that the new regulations do not provide for higher ratings for the Veteran. Specifically, as noted above, he is already in receipt of a separate 20 percent rating for his right knee. Additionally, the evidence only reflects a tibia/fibula injury of his right leg for which he is service-connected and under the new diagnostic codes, to warrant a 30 percent rating, both lower extremities must be affected. Pertaining to his right leg, the Board notes that in addition to the 20 percent rating assigned for his history of transverse fracture of the distal 1/3 right tibia and fibula, the Veteran is in receipt of a 20 percent rating for his right knee strain, in receipt of a 20 percent rating for a right calcaneal spur, a 60 percent rating for peripheral vascular disease of the right lower extremity and a 20 percent rating for right superficial peroneal sensory nerve injury of the right lower extremity. The Veteran initially attended a June 2004 VA examination. He was diagnosed with status post tibia/fibula fracture with no significant residual complications. A subsequent VA examination was completed in October 2005. It was noted that the Veteran had an antalgic gait. A December 2009 VA examination noted residual tib/fib fracture and knee strain. At a November 2011 VA examination it was noted that the Veteran had a leg length discrepancy to be about ½ inch with his right leg being shorter by ½ inch when compared with his left leg. At a February 2017 VA examination a diagnosis of transverse fracture of the distal 1/3 right tibia and fibula, with open reduction internal fixation with degenerative changes. A leg length discrepancy was noted. A July 2019 VA examination noted a tib/fib fracture of the right side. The Board notes that the Veteran is separately rated for his right knee and right ankle. In order to warrant a higher rating for his tibia/fibula the Veteran must exhibit impairment of the tibia and fibula with marked knee or ankle disability. The Board finds that the evidence of record, during the period on appeal, is not consistent with impairment of the tibia and fibula with marked knee or ankle disability to warrant an increased rating of 30 percent. The evidence discussed above, denying an increased rating for the Veteran’s service-connected right knee clearly shows that the Veteran’s right knee disability is most consistent with a “moderate” disability, not a “marked” disability needed for a 30 percent rating. Additionally, although the Veteran is in receipt of a 20 percent rating for his right ankle limitation of motion under DC 5271, which is consistent with “marked” limitation of motion, his overall disability picture of his ankle is at most moderate in nature. An April 2017 VA ankle examination reflected no ankylosis and no restriction of motion consistent with ankylosis. A July 2019 VA examination mentioned intermittent right ankle pain. The Board also notes that the Veteran’s leg discrepancy on the right has been characterized as an ½ inch, 93.2 cms. on the right and 96.4 cms. on the left, or 99 cms on the right and 100 cms. on the left. Evidence of shortening to 1¼ to 2 inches (3.2 cms. to 5.1 cms. or more is not present. Thus, a rating pursuant to DC 5275 is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for history of transverse fracture of distal 1/3 right tibia and fibula, with ORIF. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.   REASONS FOR REMAND 1. Entitlement to a TDIU, prior to June 1, 2009. During the pendency of the appeal, in a March 2015 rating decision, the Veteran was granted entitlement to a TDIU, effective June 1, 2009. However, evidence in the claims file reflects that the Veteran became unemployed as early as November 2008. See VA Form 21-8940 received September 2010. As such, although the Veteran has not appealed the effective date assigned, because a TDIU claim is considered part of an increased rating when such claim is expressly raised by the Veteran or reasonably raised by the record, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board will consider under appeal the issue of whether entitlement to TDIU is warranted prior to June 1, 2009. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the above percentages are not met, the Veteran’s claim may still be referred to the Director, Compensation Service, for an extraschedular rating, when the evidence of record shows that Veteran is ‘unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). Prior to June 1, 2009, the Veteran fails to meet the criteria for a schedular TDIU. Nevertheless, the evidence of record indicates that he may be unemployable due to his service-connected disabilities prior to June 1, 2009. Here, the Board finds that, based on evidence including a private September 2013 Independent Medical Examination, the Veteran has provided sufficient evidence to warrant referral of his TDIU claim to the Director of Compensation Service for extraschedular consideration. The authority to assign extraschedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation Service, and not the Board, in the first instance. Therefore, the correct course of action for the Board, where it finds that entitlement to an extraschedular evaluation may be present, is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 4.16(b). Floyd v. Brown, 9 Vet. App. 88 (1996). The matters are REMANDED for the following action: Refer the Veteran’s claim for a TDIU, prior to June 1, 2009, to the Director of Compensation Service for extraschedular consideration pursuant to the provisions of 38 C.F.R. § 4.16(b). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.