Citation Nr: 21025765 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-41 276 DATE: April 28, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for residuals of a fracture of the left tibia with synovitis and osteoarthritis effective December 14, 2013 is denied. FINDING OF FACT From December 14, 2013, the date of his filed increased rating claim, the Veteran’s residuals of a fracture of the left tibia with synovitis and osteoarthritis manifested by a marked knee or ankle disability but did not include nonunion of the tibia and fibula, with loose motion, requiring a brace; there is no factually ascertainable increase in severity of his residuals of a fracture of the left tibia with synovitis and osteoarthritis in the year preceding the increased rating claim. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for residuals of a fracture of the left tibia with synovitis and osteoarthritis effective December 14, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Codes (DCs) 5271-5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to November 1958 and September 1961 to September 1965. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the RO continued a 10 percent disability rating for residuals of a fracture of the left tibia with tenosynovitis in the June 2014 rating decision. The Veteran timely appealed. In the July 2017 Statement of the Case (SOC) the RO denied a rating in excess of 10 percent for residuals of a fracture of the left tibia with tenosynovitis and assigned a noncompensable rating for a scar on the anterior tibial region. The claims were brought to the Board where a decision was rendered in December 2018 denying a compensable rating for a post-operative scar of the distal left leg and remanding an increased rating for residuals of a fracture of the left tibia with tenosynovitis. Thus, the Veteran’s increased rating claim for post-operative scar of the distal left leg is no longer before the Board. 38 U.S.C. § 7104; 38 C.F.R. § 20.104. As will be discussed in more detail below, the Board finds substantial compliance with the December 2018 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes the Veteran has previously been denied service connection for multiple contended conditions secondary to residuals of a fracture of the left tibia with synovitis and osteoarthritis. Upon review, recent treatment records and VA examinations address said conditions. The Veteran is invited to file a service connection claim for these contended conditions under 38 C.F.R. § 3.155 should he wish to pursue them. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a disability rating in excess of 30 percent for residuals of a fracture of the left tibia with synovitis and osteoarthritis effective December 14, 2013 is denied. The Veteran contends his residuals of a fracture of the left tibia with synovitis and osteoarthritis entitle him to a higher disability rating. The Board finds a rating in excess of 30 percent effective December 14, 2013 is not warranted. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civilian occupations, resulting from such diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on observable symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (finding that a Veteran is competent to report on that of which he has personal knowledge). Where entitlement to compensation already has 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). Notably, “staged” ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 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 evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). 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 flare-ups 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The United States Court of Appeals for Veterans Claims (CAVC or “the Court”) held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, 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 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. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. The Veteran’s disability is rated under 38 C.F.R. § 4.71a, DCs 5271-5262, for limited motion of the ankle and impairment of the tibia and fibula. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. Under the pre-amended DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Effective February 7, 2021, DC 5271 is amended to provide for a 10 percent rating for moderate limited motion of the ankle defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum 20 percent disability rating is warranted for marked limited motion of the ankle defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. For purposes of VA compensation, normal dorsiflexion of the ankle is zero to 20 degrees and normal ankle plantar flexion is zero to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. Under pre-amended DC 5262, a 10 percent rating is warranted for malunion of 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. 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. Effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. The Board notes that the terms “slight,” “moderate,” and “marked,” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6. According to Merriam Webster’s Collegiate Dictionary 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. It should also be noted that use of terminology such as “moderate” or “severe” 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. By way of background, the Veteran was granted service connection for fracture of the left tibia with a noncompensable rating in a December 1965 rating decision. The Veteran did not appeal this rating decision or submit additional evidence within one year. As such, the December 1965 rating decision became final. The Veteran then filed an increased rating claim which the VA received on December 14, 2013. Thus, the Board will consider the period on appeal as early as one year prior to his increased rating claim or December 14, 2012. See 38 C.F.R. § 3.400(o)(2). Turning to the relevant evidence of record, treatment records from March 2013 reflect complaints of pain in the left foot and ankle. See March 2013 VA treatment records. May 2013 records reflect swelling behind the left knee and ankle. See May 2013 VA treatment records. In August of the same year, the Veteran complained of pain on the lower left extremity between the ankle and tibia describing the pain as “unbearable” at times. See August 2013 VA treatment records. Imaging was completed following the Veteran’s complaints revealing old trauma to distal tibia/fibula. Id. Upon review, the provider determined that the Veteran’s left lower leg pain was due to traumatic arthritis that was improving. Id. September 2013 records reflect left ankle pain that occurs daily and worsens with weight bearing. See September 2013 VA treatment records. Records reflect mild chronic left ankle swelling with a range of motion (ROM) less than 10 degrees flexion and extension. Id. The provider attributed the Veteran’s left ankle pain to previous trauma and osteoarthritis. Id. The Veteran stated that his pain in the left leg has continued and worsened. See July 2014 Notice of Disagreement. Treatment records in 2014 reflect complaints of left foot pain in a vascular surgery inpatient consultation. See March 2014 VA treatment records. In May 2015, the Veteran continued to complain of pain in the left foot with a noted history of trauma requiring previous surgical repair. See May 2015 VA treatment records. August 2015 treatment records reflect complaints of continued left foot pain. See August 2015 VA treatment records. Treatment records in 2017 reflect notation of exercise endurance limited by leg pain. See April 2017 VA treatment records. In October 2017, the Veteran complained of “chronic” left leg pain and left ankle pain that has worsened over the past year. See October 2017 VA treatment records. Imaging in January 2021 revealed a deformity of the distal tibia in the left ankle. See January 2021 DBQ imaging reports. The deformity was noted to be consistent with the patient’s history of prior trauma and open reduction with internal fixation. Id. No findings of acute osseous abnormality were found. Id. The ankle joint was noted to be “somewhat thinned” and could represent some posttraumatic arthritic changes. Id. The Veteran has been afforded multiple VA examinations to determine the severity of his left tibia with synovitis and osteoarthritis. During a February 2017 VA examination, the Veteran complained of intermittent pain and numbness of the lower left leg and ankle. See February 2017 VA examination. Flare-ups were not reported. Id. Functional loss and/or impairment was indicated to include being unable to walk or stand for long periods of time. Id. ROM testing revealed dorsiflexion of 0 to 15 degrees and plantar flexion of 0 to 40 degrees. Id. There was no evidence of pain with weight bearing. Id. Objective evidence of localized tenderness or pain on palpitation of the joint was not found. Id. There was no objective evidence of crepitus. Id. The Veteran was able to perform repetitive use testing without additional loss of function or ROM loss. Id. The examiner indicated the Veteran has less movement than normal due to ankylosis, adhesions, etc. Id. Neither a reduction in muscle strength nor atrophy were found. Id. Ankle instability and dislocation were not suspected. Id. Use of an assistive device was not indicated. Id. The Veteran complained of pain with ROM. Id. Active and passive ROMs were found to be equal. Id. The examiner noted that an assessment as to whether pain, weakness, fatigability, lack of endurance or incoordination limits the functional ability of ROM during periods of pain, flare-ups or when the joint is used repeatedly over a period of time is impossible to determine or quantify without speculating. Id. The Board then remanded following the February 2017 VA examination for another VA examination addressing testing for pain on both active and passive motion or in weightbearing and non-weight bearing as well as additional loss of ROM during flare-ups. In an October 2020 VA addendum opinion, the examiner opined that the best Disability Benefits Questionnaire (DBQ) for rating the Veteran’s residuals of a fracture of the left tibia with synovitis and osteoarthritis under the VA disability ratings is the ankle template. See October 2020 VA addendum. The examiner reasoned that ankle imaging from 2013 supports old trauma to the distal tibia and fibula and calcification of the interosseous ligament. Id. Thus, the examiner opined that it is at least as likely as not that the left ankle ROM would be affected by the service-connected tibial fracture. Id. Another ankle DBQ was completed in November 2020 during which the examiner indicated the Veteran had a previous left tibia fracture with osteoarthritis of the ankle. See November 2020 VA DBQ. Flare-ups were reported and described to occur with any weight bearing activity. Id. The Veteran described the flare-ups as severe and lasting until he sits or lays down. Id. Flare-ups were noted to be precipitated by weight bearing and alleviated by sitting or laying down. Id. Functional loss was reported as experiencing a stiff ankle at all times producing unsteady gait requiring the use of a cane or walker. Id. ROM testing revealed dorsiflexion of 0 to 10 degrees and plantar flexion of 0 to 15 degrees. Id. The Veteran’s ROM was noted to contribute to functional loss by causing shortened and unsteady gait. Id. Pain was not noted on examination. Id. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Id. Objective evidence of crepitus was not found. Id. The Veteran was able to complete repetitive use testing that did not result in additional functional loss or ROM loss. Id. Pain was indicated to significantly limit functional ability with repeated use over time but had a “minimal” reduction in ROM. Id. The examiner explained that the Veteran’s limiting factor is pain upon weight bearing. Id. The examiner found that pain significantly limits functional ability with flare-ups. Id. The examiner was unable to describe this in terms of ROM loss because the ROM remained the same. Id. Rather, the Veteran’s limiting factor was noted to be pain. Id. The left ankle was noted to have less movement than normal, swelling, disturbance of locomotion, instability of station, and interference with standing. Id. A reduction in muscle strength was found due to the claimed condition. Id. Muscle atrophy was not indicated. Id. The examiner found the Veteran does not have left side ankylosis. Id. Further, ankle instability or dislocation was not suspected. Id. Occasional use of a cane and regular use of a walker was noted as secondary to the left ankle pain and lack of balance on weight bearing. Id. Functional impact on occupational tasks was found to be weight bearing pain in the left ankle severely limiting the ability to stand or walk for any length of time greater than five minutes without a walker or wheelchair. Id. There was no evidence of pain on passive ROM testing or non-weight bearing testing for the left ankle. Id. The Board finds the November 2020 VA examination is adequate to determine the nature, extent, and severity of the Veteran’s residuals of a fracture of the left tibia with synovitis and osteoarthritis. The requirements of DeLuca, Correia, and Sharp were all addressed by the examiner and the Veteran’s own descriptions of his limitations were taken into account in determining functional impact and additional loss in terms of range of motion with repetitive use over time. Flare-ups were noted with symptoms of increased pain depending on use and precipitating and alleviating factors were indicated. The examiner addressed functional loss and ROM during flare-ups. Regarding the previous VA examination, while it was the subject of a previous Board remand due to insufficiencies, the examination still has probative value as it contains the Veteran’s reports of symptoms and other relevant findings to determine disability severity at the time. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Based on the above, the Board finds the Veteran has been properly rated as 30 percent disabled under the pre-amended DCs 5271-5262. A 30 percent rating under the pre-amended DC 5262 is warranted for malunion of the tibia and fibula with marked knee or ankle disability. The Veteran’s symptoms of pain, limited ROM, and functional impairment most nearly approximate a 30 percent rating for marked ankle disability. The Board finds that the Veteran’s disability is fully capable of evaluation under the rating schedule. In so finding, the Board also concludes that the preponderance of the evidence is against a rating in excess of 30 percent for residuals of a fracture of the left tibia with synovitis and osteoarthritis under pre-amended and amended DC 5262, as the 40 percent rating criteria under DC 5262 was unchanged. Indeed, the record lacks evidence of nonunion of the tibia and fibula with loose motion requiring a brace. While the record reflects use of a cane and walker, the Veteran has never contended nor do treatment records reflect use of a brace due to nonunion of the tibia and fibula with loose motion. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to an inability to stand and walk for greater than five minutes. Even considering the Veteran’s lay reports of symptoms and noted functional loss, however, the most recent November 2020 DBQ reported no change in ROM during flare-ups which the Board finds highly probative. Rather, the Veteran is limited in activities due to pain while weight bearing. The Board has considered the Veteran’s functional impact due to pain, but as the November 2020 VA examiner opined, he is only limited because of pain. There was no ROM loss during flare-ups and ROM loss was minimal with repetitive use. Accordingly, a 40 percent rating under the pre-amended and amended DC 5262 is not warranted as the record lacks evidence of nonunion of the tibia and fibula with loose motion requiring a brace. Under the amended DC 5262, impairment of the tibia and fibula malunion is to be rated under DC 5256, 5257, 5260, 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Thus, the Board has also considered whether another DC for the knee and leg would result in a higher disability rating. To this point, the Board again notes the Veteran has been previously denied service connection for left leg and knee conditions. As such, the Board finds the remaining DCs including 5256, 5257, 5260, and 5261 are not applicable because the Veteran has not been service-connected for a knee or leg disability. The Board has considered whether an increased rating would be warranted under the pre-amended DC 5271 but notes a 20 percent disability rating is the highest rating available under the DC for marked limited motion of the ankle. DC 5270 governs ankylosis of the ankle. While the November 2020 VA examiner found the Veteran’s ankle was not ankylosed, consideration must still be given to whether he is functionally ankylosed in the left ankle. Cf. Chavis v. McDonough, U.S. Court of Appeals for Vet. Claims No. 18-2928 (decided April 16, 2021). Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Here, the Veteran reports stiffness in his left ankle “at all times” with an unsteady gait. The Board finds the evidence of record does not support that the Veteran’s left ankle is immobile even during flare-ups. While the Veteran reported that he has to sit or lay down to alleviate his pain during flare-ups, he did not describe that flare-ups render his ankle immobile. This is corroborated by the evidence of record including the November 2020 VA examiner’s opinion that there is not loss of ROM during flare-ups, but rather that the Veteran is limited by his pain. Regardless, the Veteran’s plantar flexion and dorsiflexion ROMs meet the criteria for a 30 percent disability rating under DC 5270. In order to receive a 40 percent disability rating under DC 5270, there must be ankylosis with plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees, which the Veteran did not have. In fact, the November 2020 VA examiner found that the Veteran did not experience ankylosis at any specific ROM in dorsiflexion or plantar flexion. Additionally, the Board has considered whether a separate or higher rating is warranted under the other DCs related to disabilities of the ankle. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Ankylosis of the subastragalar or tarsal joint was not found rendering DC 5272 not for application. Malunion of os calcis or astragalus has not been found. Thus, DC 5273 is not applicable. Additionally, astragalectomy has not been noted within the Veteran’s treatment records or examinations under DC 5274. The Board notes the Veteran previously reported experiencing left foot numbness and a lack of pulse prompting a hospital admission during which a femoral artery procedure was completed. See July 2014 Notice of Disagreement. Treatment records reflect multiple cardiovascular procedures in 2014 with complaints of symptoms post-operatively. See September 2014 treatment records. These conditions, however, have not been service connected and are not before the Board. As noted in the introduction, the Board considered whether there was a factually ascertainable increase in severity of the Veteran’s disability in the one year period prior to the Veteran filing his increased rating claim, but found no medical evidence to support any factually ascertainable worsening. Treatment records in the year prior to the Veteran’s claim include reference to pain in the tibia and ankle and with weight bearing for which the Veteran was already assigned a 10 percent disability rating. Thus, prior to the filing of his December 2013 increased rating claim, although there is some indication he complained of left leg and ankle pain including with weight bearing, there is insufficient evidence to show a factually ascertainable increase in the severity of his condition had occurred. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for residuals of a fracture of the left tibia with synovitis and osteoarthritis under pre-amended DC 5262. 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. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.