Citation Nr: 22020008 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 17-39 082 DATE: April 4, 2022 ORDER A rating of 20 percent for a right ankle disability is granted. Entitlement to a rating in excess of 10 percent for right leg shin splints is denied. Entitlement to a rating in excess of 10 percent for left leg shin splints is denied. REMANDED Entitlement to a rating in excess of 10 percent for a low back disability prior to January 12, 2021, is remanded. Entitlement to a rating in excess of 20 percent for a low back disability from January 12, 2021, is remanded. Entitlement to an earlier effective date for service-connected right lower extremity radiculopathy is remanded. Entitlement to an earlier effective date for service-connected left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right ankle disability most closely approximates a marked limitation of motion. Ankylosis of the right ankle is not shown. 2. The Veteran's right and left leg shin splints are manifested by pain, they are not shown to have been manifested by either an ankle or knee disability (including compensable limitation of flexion or extension), knee instability, nonunion of the tibia and fibula, and or shin splints requiring (and unresponsive to) surgery. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for a right ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code (Code) 5271 (2020). 2. The criteria for Entitlement to a rating in excess of 10 percent for right leg shin splints have not been met. 38 U.S.C. §§1155, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5256-5263; 85 Fed. Reg. 76457 (Feb 7, 2021). 3. The criteria for Entitlement to a rating in excess of 10 percent for left leg shin splints have not been met. 38U.S.C. §§1155, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.25, 4.59, 4.71a; Codes 5256-5263; 85 Fed. Reg. 76457 (Feb 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from April 1992 to September 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision. In March 2021 these matters were remanded for additional development. A May 2021 rating decision increased the rating for the Veteran's service-connected low back disability to 20 percent effective January 12, 2021. A September 2021 rating decision granted service connection for right and left lower extremity (femoral) radiculopathy, effective January 12, 2021. Neurological complications associated with the Veteran's service-connected low back disability are considered part of his increased rating claim for his service-connected low back disability. Accordingly, the issues have been modified to reflect consideration of earlier effective dates for service-connected right and left lower extremity radiculopathy. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When there is a relative equal balance of evidence for and against a claim, reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. 1. Entitlement to a rating of 20 percent for a right ankle disability. Prior to February 7, 2021, Code 5271 provided that a 10 percent rating was assigned for moderate limitation of ankle motion, and a 20 percent rating was assigned for marked limitation of ankle motion. The amendment effective February 7, 2021, kept the terms "marked" and "moderate" but provided range of motion evaluations for each. Specifically, "moderate" impairment is indicated at "less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion" and "marked" impairment is indicated at "less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion." The RO received the Veteran's claim for an increased rating for the already service-connected right ankle disability in October 2013. On May 2014 ankle conditions examination, the diagnoses were a right ankle lateral collateral ligament sprain, and surgical repair of recurrent right ankle sprain with ligament shortening. The Veteran reported that his right ankle is weak and sometimes gives way. He reported that his ankle gets weak with repetitive use like driving. Range of motion was abnormal with plantar flexion to 40 degrees, and dorsiflexion to 15 degrees. Range of motion was further decreased with repetitive testing with plantar flexion to 30 degrees and dorsiflexion to 10 degrees. Functional loss of less movement than normal, weakened movement, excess fatigability, and interference with standing was noted. Range of motion during flare-ups was estimated at 10 degrees plantar flexion, and 5 degrees dorsiflexion. Muscle strength testing showed active movement against some resistance in plantar flexion and dorsiflexion. Muscle atrophy was not shown. Ankylosis was not shown. Ankle instability and laxity was shown. The regular use of a cane was noted. On July 2014 ankle conditions examination, the diagnosis was chronic right ankle sprain was noted. The Veteran reported flare-ups including increased pain. Range of motion was abnormal with plantar flexion to 40 degrees, and dorsiflexion to 15 degrees. Repetitive testing did not result in additional functional loss. Pain on palpation was not shown. Muscle strength testing was normal. Joint stability testing was normal. On January 2017 ankle conditions examination, the diagnosis was right lateral collateral ligament sprain. The Veteran reported that his ankle is loose and easily rolls. The Veteran reported decreased range of motion during flare-ups due to pain. Range of motion was abnormal with dorsiflexion to 15 degrees and plantar flexion to 35 degrees. Muscle strength testing was normal. Muscle atrophy and ankylosis was not shown. Joint instability was shown. At the January 2021 video conference hearing, the Veteran testified that he had very limited range of motion in his ankle and that it gave way easily. On May 2021 ankle conditions examination, the diagnosis was right ankle instability status post-surgical repair. Flare-ups were not reported. No history of instability was noted. Range of motion was abnormal with plantar flexion to 30 degrees and dorsiflexion to 10 degrees. Pain on weight-bearing, active motion, and passive motion was shown. Muscle atrophy and ankylosis were not shown but the examiner noted mild instability on stairs. The Veteran's right ankle is rated under Code 5271. An ankle disability may alternatively be rated under Codes 5270 (for ankylosis of the ankle) and 5272 through 5274 (for ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, and astragalectomy). 38 C.F.R. § 4.71a. Codes 5270, 5272, 5273, and 5274 do not have applicability in this matter, as there is no evidence that the right ankle, subastragalar joint, or tarsal joint are ankylosed, that there is malunion of the os calcis or astragalus, or that the Veteran underwent astragalectomy (i.e., the pathology addressed by those Codes). The Veteran's right ankle is currently rated 10 percent for a "moderate" degree of impairment. The record consistently demonstrates that the Veteran experiences additional range of motion impairment during times of flare-ups except inconsistently, the most recent examiner noted no reports of flare-ups. Additionally, the Veteran has consistently reported weakness and instability in his ankle that causes it to give way. Notably, on May 2014 ankle conditions examination the clinician approximated the range of motion impairment seen in the Veteran's right ankle during a flare-up. Such range of motion was estimated as plantar flexion to 10 degrees and dorsiflexion to 5 degrees. Normal range of motion for the ankle is plantar flexion to 45 degrees, and dorsiflexion to 20 degrees. The Board also notes (although not applicable at the time of the May 2014 examination) that the current (as of February 7, 2021) criteria for marked limitation of motion under Code 5271 is dorsiflexion at less than 5 degrees or plantar flexion to less than 10 degrees. Even though the most recent examination shows range of motion at less than the criteria for a moderate disability, there is insufficient evidence to show an overall level of improvement in function over the period of the appeal. The Board places some weight on the Veteran's written statements and hearing testimony that consistently indicates limited mobility and stability with difficulty even using the pedals on an automobile. Upon review of the overall record, the Board finds that the totality of evidence supports that the Veteran's right ankle most closely approximates that of a marked level of impairment. Accordingly, a rating of 20 percent is warranted for the entire period of the appeal. The Board has considered whether a rating in excess of 20 percent is warranted. As noted above, a rating in excess of 20 percent for the right ankle would require ankylosis in plantar flexion or dorsiflexion (Code 5270). A close review of the record found that ankylosis of the ankle has not been noted at any time; therefore, a rating in excess of 20 percent is not warranted. Significantly, whenever range of motion studies were conducted, the Veteran was found to have motion in the ankle, i.e., the ankle was not in a fixed position. Accordingly, a rating in excess of the now assigned 20 percent is not warranted. 2. 3. Entitlement to an initial rating in excess of 10 percent for right leg shin splints, and entitlement to an initial rating in excess of 10 percent for left leg shin splints. Prior to February 7, 2021, shin splints were rated by analogy under Code 5262. Under Code 5262, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. If the requirements for a 10 percent rating are not met, a 0 percent rating is to be assigned. 38 C.F.R. §§ 4.31, 4.71a. On February 7, 2021, Code 5262 was amended to include specific guidance for the rating of medial tibial stress syndrome (MTSS), or shin splints. Under this revision a noncompensable rating is warranted when treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted when requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. The RO received the Veteran's claim for an increased rating for the already service-connected bilateral tibial stress fractures in October 2013. On May 2014 ankle conditions examination, stress fracture of the bilateral lower legs was shown. Symptoms of pain and aching when walking and standing was noted. On May 2014 knee and lower leg conditions examination, the diagnosis was bilateral tibia stress fractures. The Veteran reported pain and aching in both lower legs since service. The Veteran reported flare-ups of increased pain occurring with increased activity which lasts hours to days and limits walking. It was noted that the Veteran regularly used a cane due to ankle, knee and back conditions. On January 2017 ankle conditions examination, bilateral shin splints were noted. On January 2017 knee and lower leg conditions examination, the diagnosis was bilateral shin splints. Veteran reported pain in the shins when walking. At the January 2021 video conference hearing the Veteran testified that he has constant pain and swelling in the shins. On May 2021 knee and lower leg conditions examination, the diagnoses were bilateral shin splints and bilateral tibial stress fractures. The Veteran reported pain in the shins increasing with the use of stairs, and sensitivity to impact or pressure. The functional impact was noted that it is difficult for the Veteran to walk fast or squat and has difficulty with stairs and running. Initially, the Board notes that the Veteran's shin splints are not shown to affect ankle range of motions. Therefore, codes pertaining to the ankles are not implicated. No examiner concluded that the Veteran's shin splints impacted the Veteran's knee range of motion. Notably, the May 2021 examiner specifically found that the Veteran's shin splints had no effects on the joints due to the nature of shin splints. Accordingly, Codes 5260 and 5261 are not applicable. The Veteran's bilateral shin splints were not shown to cause any ankylosis of the knee, knee instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or genu recurvatum of the knee. Accordingly, Codes 5256, 5257, 5258, 5259, and 5263 are not applicable. The Veteran's right and left shin splints have each been assigned a 10 percent rating based on painful motion of the knee based on 38 C.F.R. § 4.59. The Board has considered whether a higher rating is warranted for the Veteran's right and left shin splints under the former version of Code 5262 throughout the appeal period. As the Veteran is already being compensated for painful limitation of motion of the knees, the Board finds that a separate rating for pain as a symptom of the shin splints would violate the prohibition on pyramiding. 38 C.F.R. § 4.14. Therefore, the Board has considered whether the right and left shin splints manifested in a moderate knee disability to warrant the next higher (20 percent) rating under Code 5262, but finds the evidence is against such a finding. Accordingly, the Board finds the evidence weighs against a finding of a moderate (or greater) left or right knee disability due to impairment of the tibia and fibular, and that higher ratings under the former Code 5262 are not warranted. From February 7, 2021, the Board has considered whether a higher rating is warranted under the more appropriate revised Code 5262, but finds it is not. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (when a disability, such as shin splints, is listed in the Rating Schedule, rating by analogy is not appropriate); see also Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019). In order to warrant the next higher (20 percent rating) for right or left shin splints, the evidence must show treatment for no less than 12 months, and that the shin splint is unresponsive to surgery and either shoe orthotics or other conservative treatment. Here, the evidence does not show, nor does the Veteran assert, that he underwent surgery for his shin splints. Accordingly, the criteria for individual 20 percent ratings, or a single 30 percent rating, are not met for the right and left shin splints. In summary, the Board finds that the weight of competent and credible evidence is against the finding for ratings in excess of 10 percent for the right and left shin splints. Accordingly, the appeal in these matters must be denied. REASONS FOR REMAND 1. 2. Entitlement to a rating in excess of 10 percent for a low back disability prior to January 12, 2021, and in excess of 20 percent for a low back disability from January 12, 2021. The Board finds that there has not been substantial compliance with previous remand directives, and that corrective action is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2021 Board remand ordered an orthopedic examination for the Veteran to assess the current severity of his low back disability. The clinician was directed to include range of motion studies and provide description of the Veteran's flare-ups. On May 2021 examination, the clinician noted the Veteran reported flare-ups, but failed to provide detail concerning the estimated range of motion the Veteran experiences during a flare-up. Where an examiner cannot describe additional functional loss during flare-ups in terms of ranges of motion without resorting to speculation, the examiner should at least note the frequency, severity, and duration of the Veteran's reported flare-ups, as well as the Veteran's own report as to his additional functional limitations. See Sharp v. McDonald, 29 Vet. App. 26, 34-35 (2017). Notably when VA undertakes to provide the Veteran with a medical opinion, it must provide for one that is adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, a new examination which considers the Veteran's lay statements and the Veteran's range of motion during a flare-up is necessary. 3. 4. Entitlement to an earlier effective date for service-connected right lower extremity radiculopathy to an earlier effective date for service-connected left lower extremity radiculopathy As noted above, neurological complications are associated with the Veteran's service-connected low back disability are considered part of his increased rating claim for his service-connected low back disability. The Veteran's increased rating claim for his service-connected low back disability is an initial increased rating claim. The Veteran was granted service connection for a low back disability effective October 22, 2013. The Veteran is service connected for left lower extremity radiculopathy effective October 16, 2017, and right lower extremity radiculopathy effective January 27, 2015. The Veteran is separately service connected for right and left lower extremity (femoral) radiculopathy from January 12, 2021. Although the claims require retrospective evaluation of the onset and severity of the radiculopathy, lay and medical evidence developed in the next examination could also be relevant to the history. Accordingly, entitlement to an earlier effective date for right and left lower extremity radiculopathy is inextricably intertwined with the Veteran's increased rating claim for his low back disability. 5. Entitlement to a TDIU As previously noted by the Board, the matter of TDIU has been raised by the record. As of the time of the March 2021 remand, the Veteran was rated a total of 60 percent. As discussed above, a May 2021 rating increased the Veteran's rating for his service-connected low back disability to 20 percent, effective January 12, 2021. Additionally, a September 2021 rating decision granted service connection for right and left lower extremity (femoral) radiculopathy. These rating decisions have changed the posture of the Veteran's TDIU claim. Notably, the Veteran's combined rating of 60 percent for his service-connected disabilities prior to January 12, 2021, still do not meet the schedular criteria for TDIU. However, the Veteran does now meet the schedular criteria for TDIU effective January 12, 2021. Lastly, the Board notes that there is some discrepancy as to when the Veteran was last employed. At the January 2021 video conference hearing the Veteran testified that he was last employed in February 2020 as a graphic designer. See January 2021 Video Conference Hearing pg. 6. However, in a July 2021 VA Form 21-8940 the Veteran reported that he was last employed in September 2018 and became too disabled to work in February 2019. See July 2021 VA Form 21-8940. Accordingly, clarification from the Veteran should be sought. The matters are REMANDED for the following action: 1. Send the Veteran a TDIU application form (VA Form 21-8940) to clarify his history of employment, skills, and education (specifically to clarify the date of his last full-time employment). 2. Arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected low back disability. The Veteran's record must be reviewed by the examiner. All necessary studies must be completed and must include range-of-motion studies in weight-bearing and non-weight-bearing (with notation of any additional functional limitations due to such factors such as weakness, pain, incoordination, flare-ups and fatigue). If the Veteran is not examined during a time of a flare-up, an estimated range of motion during the time of a flare-up should be provided (or provide rationale for why such estimation cannot be provided). All pertinent findings including related functional limitations and impact on employment must be described in detail. 3. Review the record for any evidence of earlier manifestation of right and/or left lower extremity radiculopathy. 4. Then, review the expanded record (to include any clarifying statements concerning the Veteran's employment received), arrange for any further development indicated, and adjudicate the claim for TDIU considering the determinations made on the above increased rating claims. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.