Citation Nr: 21027091 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 10-41 432 DATE: May 4, 2021 ORDER Entitlement to service connection for a left leg disability secondary to service-connected residuals of right tibia-fibula fracture is granted. REMANDED Entitlement to a rating in excess of 20 percent for residuals of right tibia-fibula fracture, to include knee and ankle conditions, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence is at least in equipoise that the Veteran's left leg disability was proximately due to or the result of his service-connected residuals of right tibia-fibula fracture. CONCLUSION OF LAW The criteria for entitlement to service connection for a left leg disability secondary to service-connected residuals of right tibia-fibula fracture have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1990 to August 1990 and from August 1990 to July 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran and his wife testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. The Board remanded these matters in December 2018 for additional development. The case is now returned to the Board for appellate consideration. Entitlement to service connection for a left leg disability The Veteran seeks entitlement to service connection for a left leg disability, which he asserts is secondary to his service-connected residuals of a right tibia-fibula fracture. After careful review of the evidence of record, the Board finds that service connection on a secondary basis is warranted. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Without a currently-diagnosed disability, service connection may not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the requirement for a current disability is satisfied when a claimant has a disability either at the time a claim for VA compensation is filed or at any time during the pendency of that claim. A claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran contends that in December 2008 he was working on a ladder when his right ankle gave out, causing him to fall. He caught himself on his left leg and hyperextended his hamstring. According to VA treatment records, the Veteran sought treatment in February 2009 for a large hematoma and persistent, severe pain in his left posterior thigh. He related the incident where he fell off the ladder to the examining physician, who noted his history of right leg tibia-fibula fracture with resultant varus deformity and arthritis of the ankle. An MRI revealed the Veteran to have an avulsed (torn from the bone) semitendinosus tendon and a partial thickness tear of the semimembranosus muscle. In March 2009, following a consultation for his hamstring tears, a VA orthopedic surgeon recommended that the Veteran undergo physical therapy. Thereafter, the Veteran filed his claim for service connection for the left leg injury later in March 2009. In April 2009, the Veteran began physical therapy. He reported to the physical therapist that he continues to experience pain in his left hamstring when sitting and walking. In June 2009, the Veteran submitted a letter from his physical therapist, who related that the Veteran has been attending physical therapy for a left hamstring tear that he suffered due to his right ankle weakness. The Veteran underwent a VA examination in June 2009. The VA examiner noted the Veteran's left hamstring tears, as shown by MRI, and his report of how he was injured falling off a ladder. On examination, there was palpable pain over the semimembranous muscle and tendon. On the examination report, the VA examiner noted that the Veteran has "damage to the left leg muscles and tendons secondary to right [tibia-fibula] fracture," however, when asked to provide an etiology opinion for the Veteran's left leg disability on a secondary basis, the VA examiner stated that he could not do without resorting to mere speculation. In November 2010, the Veteran reported to his VA physician that he continues to experience pain in his left posterior thigh when sitting or with prolonged standing or walking. He underwent an MRI in December 2010, which revealed a healed tear of the left semimembranosus muscle with small fibrotic scar formation. No new muscle injury was identified and he was informed that his muscle tear appeared to be healed. At the July 2018 Board hearing, the Veteran testified that he still cannot sit for long periods of time without experiencing pain in his left hamstring. The Veteran underwent a VA examination in October 2019. The VA examiner acknowledged the Veteran's left leg injury sustained in December 2008, but determined that the condition has since resolved without chronic residuals, noting that the Veteran's left leg on physical examination was normal. The examiner opined that, based on the history of the injury, as documented by medical records, and the mechanism of such an injury, it is at least as likely as not that the Veteran's left leg disability occurred as a result of a "give-way" of the service-connected right ankle disability. After carefully reviewing and weighing the competent evidence of record, the Board is satisfied that the evidence is at least in equipoise as to whether the Veteran's left leg disability was proximately due to or caused by his service-connected residuals of right tibia-fibula fracture, which includes knee and ankle conditions. First, the Board notes that although there is a question of whether the Veteran's left leg disability is currently resolved, the injury was diagnosed and being treated at the time that the Veteran filed his claim for service connection; therefore, the disability is eligible for service connection. See McLain, 21 Vet. App. at 321. Next, the Board notes that the October 2019 VA examiner determined that it was at least as likely as not that the Veteran incurred his left hamstring injury when his right ankle gave out, causing him to fall. The examiner based this opinion on a review of the Veteran's treatment records and her own knowledge and expertise as a medical doctor of the mechanics of such an injury. Moreover, the Veteran's physical therapist and the physicians at VA who treated his left leg disability attributed his hamstring injury to his right ankle weakness. Lastly, the Board notes that the Veteran is competent to report on matters observed or within his personal knowledge, such as the circumstances surrounding the onset of his left leg disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds it significant that the Veteran's lay statements with regard to how he injured his left leg have remained consistent throughout the duration of his appeal, including in his descriptions to his treating physicians, VA examiners, and VA adjudicators. See id. Moreover, the reported circumstances of his injury, in which his right ankle "gave out" causing him to fall off a ladder and hyperextend his left hamstring, is supported by the medical evidence of record. In this regard, the Board notes that the Veteran's history of weakness, instability, and swelling in his right ankle is well-documented in his VA treatment records. Due to frequent falls, he has been prescribed a brace to wear on his right ankle. Finally, there is no suggestion from these medical records that there is any other plausible cause of the Veteran's left leg injury. Based on the foregoing, the Board resolves all reasonable doubt in the Veteran's favor and finds that the evidence is at least in equipoise as to whether his left leg disability was proximately due to or the result of his service-connected residuals of right tibia-fibula fracture, to include a right ankle condition. Accordingly, the criteria for service connection on a secondary basis are met and the Veteran's appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development of the claims remaining on appeal is necessary prior to appellate review. 1. Entitlement to a rating in excess of 20 percent for residuals of right tibia-fibula fracture, to include knee and ankle conditions, is remanded. Pursuant to the December 2018 Board remand, the Veteran underwent a VA examination in October 2019 to assess the current severity of his service-connected right leg disability. To properly assess the Veteran's residuals of right tibia-fibula fracture, the VA examiner was instructed to complete both the VA knee and lower leg conditions disability benefits questionnaire (DBQ) and the VA ankle conditions DBQ. First, with regard to the knee and lower leg conditions examination, the Veteran reported to the examiner that he experiences an intermittent aching-type pain in the anterior mid-tibia that is worsened with activity and relieved with rest. He reported taking diclofenac with partial relief of symptoms. Despite the Veteran's report, the examiner noted on the examination report that he does not experience flare-ups or functional loss due to his lower leg condition. As such, the examiner did not assess any additional functional loss or attempt to estimate the degree of functional loss experienced during periods of flare-up pain. The United States Court of Appeals for Veterans Claims (Court) has held that a VA examination is inadequate when the examiner does not adequately address additional functional loss experienced during periods of flare-up. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Further, most recently, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that when evaluating musculoskeletal disabilities, examiners must attempt to estimate the additional functional loss that would occur during periods of flare-up, name the precipitating and alleviating factors for such flare-ups, and estimate "per the Veteran" the extent to which these flare-ups affect functional impairment. At the October 2019 examination, this analysis was not done. Moreover, the Board notes that the examiner erroneously marked on the examination report that the Veteran does not have now (or ever had) impairment of the tibia or fibula. VA treatment records show that the Veteran has been found on x-ray to have slight varus malunion of right distal tibia-fibula. See August 2008 VA Orthopedic Clinic Note. Because of this error, the examiner did not attempt to assess the current severity of the Veteran's tibial and fibular impairment, to include whether he currently suffers from nonunion of the tibia and fibula, as claimed by the Veteran's wife, a registered nurse, at the Board hearing. Next, with regard to the ankle conditions examination, the Board notes that the Veteran described to the examiner experiencing frequent falls due to weakness and swelling in his right ankle. The Veteran's reports are supported by the medical evidence of record, which document that he has been prescribed an ankle brace due to suffering frequent instability and falls. However, despite the Veteran's competent reports, the examiner marked on the examination report that right ankle instability is not suspected. This finding was not accompanied by an explanatory rationale. Furthermore, the examiner also marked on the examination report that the Veteran does not have documented arthritis of the right ankle, despite an August 2008 x-ray report documenting degenerative joint disease in the right ankle. See August 2008 VA Orthopedic Clinic Note. In light of the above, the Board finds the October 2019 VA leg and ankle examinations to be inadequate for properly evaluating the current severity of the Veteran's residuals of right tibia-fibula fracture, to include knee and ankle conditions. In this regard, the Board notes that the examiner's findings are inconsistent with the Veteran's lay reports and other medical evidence of record, particularly with regard to whether the Veteran experiences flare-ups or additional limitation of functional ability due to pain on motion, weakness, excess fatigability, and incoordination. See Sharp, 29 Vet. App. at 26. Likewise, the examiner's findings that the Veteran does not have impairment of the tibia or fibula, instability of the ankle, or arthritis of the ankle do not accord with the medical evidence of record. Because the RO did not obtain an adequate examination in accordance with the Board's prior remand directives, this matter must once again be remanded for compliance. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a TDIU is remanded. The Veteran's TDIU claim is inextricably intertwined with the increased rating claim remanded herein as resolution of that claim may impact adjudication of the TDIU claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). As such, the claim for a TDIU is deferred pending adjudication of the claim remanded by the Board herein. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with a VA doctor (M.D.) of appropriate expertise (i.e. orthopedist) to assess the current severity of his service-connected residuals of right tibia-fibula fracture, which includes any associated knee, lower leg, and/or ankle conditions. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be performed and all findings reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner is asked to respond to the following: (a) Report the extent of the symptoms of the Veteran's right knee, lower leg, and/or ankle disabilities in accordance with VA rating criteria using the appropriate disability benefits questionnaire (DBQ). (b) For each disability of the right lower extremity, conduct range of motion testing, specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the right knee, lower leg, and/or ankle. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) State whether the examination is taking place during a period of flare-up. If not, the examiner must ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. Based on the Veteran's lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must fully explain the basis of such an opinion. It should be noted that VA's Clinicians Guide specifically advises examiners to procure information necessary to render an opinion regarding flare-ups from veterans. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, s/he should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. (e) The Veteran's lay statements regarding his symptomology, specifically his July 2018 hearing testimony and that of his wife, in which he endorsed symptoms of swelling, edema, and multiple occasions of his right knee, lower leg, and/or ankle giving out must be recorded and considered. (f) The examiner is asked to specifically indicate whether the Veteran has an impairment of the tibia and fibula, and, if so, whether it is (i) nonunion, with loose motion; or (ii) malunion. A full and complete explanatory rationale must be provided for any opinions offered. The Board reminds the examiner that failure to comply with the directives outlined herein renders an examination report inadequate and will result in further remand of the Veteran's claims. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.