Citation Nr: 22057504 Decision Date: 10/12/22 Archive Date: 10/12/22 DOCKET NO. 14-38 634 DATE: October 12, 2022 ORDER Entitlement to an initial 10 percent rating, but no higher, for left lower extremity exertional compartment syndrome (ECS) is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial 10 percent rating, but no higher, for right lower extremity ECS is granted, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's left lower extremity ECS constitutes a painful joint but did not at any time more nearly approximate moderate instability or unrepaired or failed repair of complete ligament tear causing persistent instability or result in a medical provider prescribing either a brace or an assistive device. 2. The Veteran's right lower extremity ECS constitutes a painful joint but did not more nearly approximate moderate instability or unrepaired or failed repair of complete ligament tear causing persistent instability or result in a medical provider prescribing either a brace or an assistive device. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for left lower extremity ECS, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.45, 4.71a, Diagnostic Code (DC) 5299-5257. 2. The criteria for an initial 10 percent rating, but no higher, for right lower extremity ECS have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.45, 4.71a, DC 5299-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to July 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, among other things, granted service connection for ECS of the left and right lower extremities and assigned a noncompensable rating, effective July 27, 2012. In January 2013 the Veteran filed a Notice of Disagreement (NOD) and in August 2014 the RO issued a statement of the case (SOC). In October 2014 the Veteran timely filed a substantive appeal (via VA Form 9). The Veteran testified during a Board hearing in June 2018. Under the legacy system, Veterans Law Judges (VLJs) who conduct hearings must participate in making the final determination of the claim involved. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. § 20.707 (2018). The Veteran was advised in a March 2021 letter that the VLJ who conducted the hearing is not available to render a decision on these claims. The letter indicated that if the Veteran did not respond within 30 days, the Board would assume he did not want another hearing. As the Veteran did not respond, the Board will adjudicate the claims. In August 2019 and June 2021, the Board remanded the Veteran's claims for further evidentiary development, specifically, to schedule him for a VA examination to determine the current severity of his left and right lower extremity ECS. In December 2021 the Veteran was afforded a VA examination which, for the reasons indicated in the discussion below, is adequate to decide his claims. Therefore, the RO complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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 Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). ECS of the left and right lower extremities The Veteran's ECS of the left and right lower extremities are rated noncompensable under 38 C.F.R. § 4.71a, DC 5299-5257. Hyphenated DCs are used when there is no specifically applicable DC and the disability is rated by analogy. 38 C.F.R. § 4.27. As ECS is not assigned a specific number, the Veteran's ECS of the left and right lower extremities are rated by analogy using the criteria for instability under DC 5257. 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 DC's "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. DC 5257, regarding knee instability, was one of the DC's affected by the change in criteria. If a law or regulation changes during 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. 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 DC 5257, recurrent subluxation or instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. See 38 C.F.R. § 4.71a, DC 5257. For context, "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 7, 2022). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 7, 2022). As of February 7, 2021, under the amended criteria, DC 5257 now provides for a 10 percent rating for a 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; a 20 percent disability rating for either 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 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; and a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A July 2012 VA examiner conducted range of motion (ROM) testing which revealed flexion and extension were not limited with no objective evidence of painful motion. No functional loss and/or functional impairment of the knee was noted. No instability or patellar subluxation/dislocation was noted. The VA examiner noted that the Veteran experienced shin splints and diagnosed him with chronic ECS. The Veteran reported that his knee symptoms affect his ability to run which goes away by resting. The Veteran reported experiencing flare-ups. At the June 2018 Board hearing, the Veteran testified that his left and right lower extremity ECS causes him pain when he runs. He testified that the pain shoots up his left side to his knees and up to his waist and lower back. A September 2020 VA examiner conducted ROM testing which revealed flexion and extension were not limited with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with at least three repetitions. The VA examiner noted that he does not have any functional loss or functional impairment of the joint or extremity being evaluated, including but not limited to repeated use over time. There was no evidence of pain with weight bearing. No instability or recurrent subluxation was noted. The Veteran did not report flare-ups. A December 2021 VA examiner conducted ROM testing which revealed flexion and extension were not limited with no objective evidence of painful motion. The Veteran reported that he has functional loss or functional impairment of the joint or extremity being evaluated, including but not limited to repeated use over time. Specifically, the Veteran reported that it is hard to knee or climb stairs. The Veteran did not report a history of instability or recurrent subluxation of the knee. The VA examiner noted that he occasionally wears a brace for ease of motion to his strain. The VA examiner noted that there is no pain with passive ROM or with non weight bearing. The VA examiner also noted that he did not experience any flare-ups. An April 2022 VA physician opined that the previous diagnosis of chronic ECS was made on July 24, 2012, without X-rays which reduces its accuracy. The VA physician noted that a diagnosis of knee strain would be more accurate as it is made with X-rays from 2021. The Board is cognizant of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), which requires the Veteran's joint motion to be evaluated on both active and passive motion, and in weight-bearing, and non-weight-bearing. The Board finds that the April 2022 VA examiner complied with Sharp and Correia in this respect as he noted that there was no pain on both active and passive motion, in weight-bearing and nonweight-bearing. Further, in Sharp the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The Veteran did not report flare-ups and therefore the April 2022 VA examination is compliant with Sharp because an opinion contemplating flare-ups is not required when the Veteran does not report flare-ups. As such, there has been compliance with the June 2021 remand instructions. See Stegall, 11 Vet. App. at 271. In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. The plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Moreover, the criteria for such a rating can be satisfied with lay and other non-medical evidence. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015). During the pendency of the appeal the Veteran has complained of left and right lower extremity pain. The Veteran's complaints of pain are competent and credible because it comes to him from his own senses and is consistent with the nature of his service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the Veteran has experienced pain and painful motion throughout the appeal period, a 10 percent rating is therefore warranted. However, neither the lay nor medical evidence indicates that the Veteran's left and right lower extremity ECS caused instability, sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, or that a medical provider prescribes a brace and/or assistive device. Therefore, an initial rating greater than 10 percent is not warranted under DC 5257-5299. No other diagnostic code alternatively provides a basis for any higher or additional rating for the Veteran's left and right lower extremity ECS. The Veteran attended numerous VA examinations and none of the VA examiners noted that his left and right lower extremity ECD indicated ankylosis, dislocated semilunar cartilage, removed semilunar cartilage, limitation of flexion or extension, or impairment of the tibia and fibula in the left knee which would warrant separate ratings under DCs 5256, 5258, 5259, 5260, 5261 or 5262. Therefore, a separate or higher rating under these DCs is not warranted. (Continued on the next page) Neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Miller, 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.