Citation Nr: 21039679 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 12-11 592A DATE: July 1, 2021 ORDER Entitlement to an initial rating of 20 percent for residuals of a left tibial tumor status post excision with hardware placement and bone graft, is granted. REMANDED Since February 7, 2021, entitlement to a rating in excess of 20 percent for residuals of a left tibial tumor status post excision with hardware placement and bone graft, is remanded. FINDING OF FACT Prior to February 7, 2021, the Veteran's service-connected residuals of a left tibial tumor status post excision has manifested with moderate left ankle and left knee disability; there has been no showing of malunion of the tibia and fibula, or marked knee or ankle disability. CONCLUSION OF LAW The criteria for an initial disability evaluation of 20 percent for residuals of a left tibial tumor status post excision with hardware placement and bone graft are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.102, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1986 to January 2007. The case is on appeal from a May 2009 rating decision. The case was most recently before the Board in May 2020. At that time, the Board denied entitlement to an initial rating in excess of 10 percent for residuals of a left tibial tumor. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the parties entered into a joint motion for remand (JMR), which the Court granted in a February 2021 Order. By Court Order, the Board's May 2020 decision was vacated, and the matter was remanded back to the Board for further consideration consistent with the terms of the JMR. 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, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 10 percent for residuals of a left tibial tumor status post excision with hardware placement and bone graft. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Specific Legal Criteria The Veteran's left tibia disability is currently rated under DC 5262, which assigns a rating based on the overall severity of ankle disability. DC 5262 provides that a 10 percent evaluation is warranted where there is malunion with slight knee or ankle disability. 38 C.F.R. § 4.71a , DC 5262. A 20 percent rating applies where moderate knee or ankle disability is present, and a 30 percent rating is warranted where the knee or ankle disability is marked. Id. Finally, a 40 percent rating requires a showing of nonunion "with loose motion, requiring brace." Id. The Veteran is currently in receipt of a 10 percent evaluation under the code. Although the evidence does not show actual malunion of the tibia and fibula in the Veteran's case, because his disability affects this anatomical region and has residual impact on the ankle and knee, the Board finds that the disability should be rated by analogy to DC 5262. Analysis The Veteran contends that his left tibial disability is more severely disabling than reflected by the currently assigned 10 percent rating. The Veteran was granted service connection for a left tibia disability in May 2009, and the Veteran was assigned a noncompensable rating effective February 10, 2009. In a July 2014 rating decision, the RO increased the initial rating for the left tibia disability to 10 percent, effective February 10, 2009. The Veteran has continuously and timely appealed this initially rating. As such, the period on appeal is from February 2009 to the present. At his March 2009 VA examination, the Veteran reported sharp pain at a 5 out of 10 level in the left shin that occurred 10 times a week lasting about 6 minutes. The pain was elicited by physical activity and relieved by rest and over-the-counter medicine. The Veteran reported that he could not hike or run long distances. The examination results revealed that the left knee showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement. There was also no locking, pain, genu recurvatum, or crepitus. The range of motion of the left knee joint was flexion to 140 degrees and extension to 0 degrees. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The stability of the ligament and meniscus tests were within normal limits. The Veteran's left ankle at the March 2009 examination showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, guarding of movement, or deformity. The range of motion of the left ankle was dorsiflexion to 20 degrees and plantar flexion to 45 degrees. The ankle joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. X-ray findings of the left tibia and fibula area showed that there was an intramedullary rod through the tibia with two interlocking screws in the proximal tibia. There was no fracture, dislocation, or hardware failure. Callus formation related to the proximal tibial fracture healing was noted. In his May 2010 notice of disagreement (NOD), the Veteran stated that the majority of his pain was where the bone was removed, and a cadaver bone was inserted. When he twisted his leg, or put pressure on the front of his foot, he experienced a severe, sharp pain around the bone in his leg. He also reported that if he did anything like jogging, playing basketball, tennis, swimming, standing for long periods, or hiking any distance, he experienced the same sharp pain. He reported constantly having to take over-the-counter medicine or some other pain killer. He stated it negatively impacted his ability to stay in shape, play with his kids, and the kind of job he had. In his June 2014 VA knee examination, the Veteran reported pain with prolonged standing or activity and that flare-ups made it difficult to stand for a long time or to bend his knee, squat, walk, or do stairs. Left knee range of motion ended at 110 degrees of flexion, with pain also beginning at 110 degrees, and no limitation or pain with extension. There was no change in range of motion following repetitive use. However, the examiner noted that there were contributing factors of pain on movement, less movement than normal, weakness, fatigability, and incoordination, and there was additional limitation of functional ability of the knee joint during flare-ups or repeated use over time. The degree of range of motion loss during pain on use or flare-ups was approximately 10 degrees loss of all affected motions. The examiner also noted tenderness or pain on palpation at the joint line or soft tissues in both knees. There was no instability of the left knee and no evidence or history of recurrent patellar subluxation/dislocation. The Veteran was not found to have a meniscus condition or to use assistive devices. X-ray findings revealed no fractures, dislocations, suspicious bony lesions, soft tissue calcifications, or masses. The examiner noted that the Veteran's tibia fracture was healed in anatomic alignment. In an October 2017 VA knee examination, the Veteran reported flare-ups of the left tibia and ankle, indicating that it was painful when it was hit. He denied any functional loss or impairment, including with repeated use over time. Range of motion testing in the left knee revealed 130 degrees flexion and 0 degrees extension, with pain on flexion that was noted to cause functional loss. There was evidence of pain with weightbearing, localized tenderness or pain on palpation of the joint or associated soft tissue, and crepitus. There was no additional loss of motion after repetitive use testing. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repetitive use over time or during a flare-up. Joint stability testing was normal, and there were no meniscal conditions on the left side. The Veteran was noted to have left shin splints, but it did not affect range of motion of the knee or ankle. He did not use assistive devices. The examiner found that functional impact included having to avoid heavy physical labor, repetitive squatting, repetitive stair climbing, and running. The Veteran was best suited to light physical labor and non-physical work. The examiner found no evidence of pain on passive range of motion testing of the left knee, but there was objective of pain on non-weightbearing testing of the left knee. In the January 2020 VA knee and lower leg examination, the examiner diagnosed the Veteran with residuals of left tibial tumor status post excision with hardware replacement and bone graft. The Veteran reported that it hurt to walk more than 6 or 7 miles a day, and that part of his job involved walking. He also reported that the pain can go up to a 7 or 8 out of 10 if his leg is touched. He also had left knee swelling with prolonged standing. The Veteran confirmed that he experienced flare-ups and functional loss or impairment as described. The examiner noted that there was no evidence of pain with weightbearing, and no objective evidence of crepitus. The left knee was noted as having normal flexion and extension with no pain noted on the examination. The examiner noted that there was objective evidence of localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or range of motion after repetitions. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repetitive use over time or during a flare-up. The January 2020 examiner performed muscle strength testing and rated the Veteran's left knee as 5/5 flexion, 5/5 extension, and noted that there was no reduction in muscle strength. The examiner noted that there was no muscle atrophy and that the Veteran had no ankylosis on the left leg and ankle joints. The Veteran exhibited no history, or current findings of, recurrent subluxation, instability, or recurrent effusion. The Veteran had no meniscal condition, and his stress fracture of the left lower leg did not affect range of motion of the left ankle. The examiner determined that there was no evidence of pain on passive range of motion testing and that there was no evidence of pain when the joint was used in non-weightbearing. The examiner also performed an ankle examination in January 2020. The Veteran reported flare-ups of the left ankle. He described intermittent pain to one-third of the left tibia. Climbing ladders, and any pivoting or twisting with a planted ankle, hurt. He had pain in the left ankle when standing for long periods or pivoting, reported at a 3 out of 10 in pain severity. The Veteran also sometimes noticed ankle swelling with prolonged standing. The examiner found normal dorsiflexion and plantar flexion with no pain noted on the examination. There was no evidence of pain with weightbearing, no objective evidence of localized tenderness or pain palpation of the joint, and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after repetitions. The examiner found that pain, weakness, fatigability, or incoordination did not significantly limit functional ability after repetitive use over time or during a flare-up. The examiner performed muscle strength testing and found that the Veteran's left ankle rated 5/5 for plantar flexion and 5/5 for dorsiflexion, with no reduction in muscle strength noted and no indication of muscle atrophy. The examiner determined that the Veteran did not suffer from ankylosis and there was no ankle instability or dislocation suspected. The examiner noted that there was degenerative or traumatic arthritis in the Veteran's left ankle. In regard to functional impact, the examiner determined that the Veteran's ankle condition impacted the Veteran's ability to perform occupational tasks such as standing, walking, lifting, or sitting. The examiner elaborated that the Veteran was not limited by sedentary or desk work, but prolonged walking and climbing ladders and pivoting was limited due to the Veteran's left tibial condition. The examiner determined that there was no evidence of pain on passive range of motion testing and that there was no evidence of pain when the joint was used in non-weightbearing situations. Upon consideration of the evidence of record, the Board finds that a higher rating of 20 percent for "moderate" knee and ankle disability is appropriate in the Veteran's case. His statements throughout the current appeal period reflect ongoing "sharp" pain in his left shin, particularly where the bone was removed and a cadaver bone was inserted, any time he performed exercise or stood for long periods. See Veteran's May 2020 NOD, and March 2009, June 2014, and January 2020 VA examinations. He also exhibits ambulatory limitation and pain in his left shin, knee, and ankle due to the disability: pain in the knee at 110 degrees flexion, and pain with bending, squatting, or stairs reported at the June 2014 examination; knee pain with weightbearing and non-weightbearing in October 2017; and unable to walk more than 6 miles a day, with knee and ankle pain and swelling from activities of climbing ladders, pivoting, and prolonged standing reported in January 2020. It is additionally noted that the October 2017 VA examiner found a functional impact that included avoiding repetitive squatting, stairs, and running, and the January 2020 examiner determined the Veteran's left ankle impacted his ability to stand, walk, lift, or sit. These are activities that the Veteran described as part of his job duties involved while at work connecting electrical cords and connections, requiring extensive walking, squatting, and climbing ladders. The Board also notes the Veteran reports "constantly" taking over-the counter medication or some other pain killer for his left tibia disability. See Veteran's May 2010 NOD. Entitlement to a higher rating should not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012). As DC 5262 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's shin, knee, and ankle pain, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of his disability. Id. Entitlement to a higher rating than 20 percent is not warranted for any portion of the appeal period prior to February 7, 2021. Nonunion or malunion of the left tibia has not been found. 38 C.F.R. § 4.71a, DC 5262. The Board has also considered whether any other DCs related to the knee and leg would provide for a higher disability evaluation. However, the evidence does not reflect that he is warranted a higher rating under a different DC. See 38 C.F.R. § 4.71a. As noted above, the Veteran retains full muscular strength in both his left knee and ankle, no locking, no meniscal issues, no genu recurvatum and the use of an ambulatory device has not been reported. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5258, 5259, 5263. There is also no evidence of recurrent subluxation or instability of the knee or ankle. 38 C.F.R. § 4.71a, DC 5257. Measurements of range of motion for the left knee and ankle show no ankylosis, nor limitation of flexion or extension that warrant a rating higher than 20 percent, even during flare-ups or repetitive use. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5256, 5260, 5261, 5270. This evidence also demonstrates that the Veteran's left knee and ankle do not reach marked disability. 38 C.F.R. § 4.71a, DC 5271. In sum, a 20 percent rating for the left tibia disability is warranted throughout the appeal period up to February 7, 2021. However, the preponderance of the evidence is against a higher rating prior to February 7, 2021, as nonunion or malunion of the left tibia is not shown, nor is limitation of motion, subluxation, or instability of the left knee or ankle reflecting a marked disability. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial rating of 20 percent for residuals of a left tibial tumor status post excision is warranted, but no higher, for the period prior to February 7, 2021. REASONS FOR REMAND Since February 7, 2021, entitlement to a rating in excess of 20 percent for residuals of a left tibial tumor status post excision with hardware placement and bone graft. The Board notes that DCs 5257, 5262, and 5271 were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These amended DC versions may not be applied prior to the effective date of February 7, 2021. See 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board may consider both the former and new rating criteria from February 7, 2021, if this would afford a more favorable outcome. Throughout the course of the appeal, the Veteran has reported symptoms that include shin splints. At his March 2009 VA examination, he described sharp pain in the shin that occurred 10 times a week. In his May 2012 Form 9 Substantive Appeal, the Veteran stated that his left shin excision site hurts when he twists his leg or puts it down hard, and limits his ability to work, hike, or jog. The shin splints were again noted in the October 2017 VA examination. The revised DC 5262 allows for consideration of medial tibial stress syndrome (MTSS). However, as the February 2021 changes to the criteria came after his last VA examination in January 2020, the Board finds that a new examination is warranted to assess whether the Veteran's left tibia disability allows for a higher rating under the new criteria, to include any changes to the DCs for the knee and ankle. The Board finds that to fully and fairly evaluate the nature and severity of the Veteran's service-connected left tibia disability, a new examination, to include evaluation under the new criteria for DCs 5257, 5262, and 5271, is needed. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate clinician, to evaluate the severity of his service-connected left tibia disability since February 7, 2021. The record, including a complete copy of this remand, should be made available for review. The examiner should provide an assessment of the current nature of the Veteran's left tibia, left knee, and left ankle. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with all conditions identified. All functional limitations present (a) after repetition over time and, separately, (b) during flare-ups, should be reported. The examiner should also estimate the current amount in degrees of range of motion lost due to pain in both weightbearing and non-weightbearing positions, and on both active and passive motion. The VA examiner should note the revised changes of the criteria for rating musculoskeletal system and muscle injuries disabilities, effective February 7, 2021, to include the change in criteria for impairment of the tibia under DC 5262, instability of the knee under DC 5257, and definitions of marked and moderate limitation of motion of the ankle under DC 5271. With regard to Diagnostic Code 5257, the examiner should consider: (a) the extent of any sprain or ligament tear (and repair thereof), (b) the prescription and/or use of assistive devices (e.g., a cane, crutches, or a walker), (c) the need for bracing for ambulation, and (d) the extent and degree of any current instability. With regard to Diagnostic Code 5262, and MTSS/shin splints, the examiner should consider: (1) the extent and duration of treatment; and (2) responsiveness to surgery, shoe orthotics, or other conservative treatment. If the examiner cannot provide some or all of such opinions, the examiner must make clear that he or she has considered all relevant, procurable data (to include the Veteran's statements), but that any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should provide rationale for all opinions expressed, including by citing to the record. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.