Citation Nr: 25005441 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 12-11 592A DATE: April 22, 2025 REMANDED Entitlement to a disability rating in excess of 20 percent for residuals of a left tibial tumor status post excision with hardware placement and graft (left leg disability), for the period beginning February 7, 2021, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from May 1986 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ). In response, the Veteran filed a Notice of Disagreement in May 2010. The Veteran perfected his appeal to the Board in the May 2012 VA Form 9. In a May 2020 decision, the Board denied entitlement to an initial rating in excess of 10 percent for residuals of the left leg disability. Then, in February 2021, the United States Court of Appeals for Veterans Claims (Court) granted the February 2021 Joint Motion for Remand (JMR), vacated the May 2020 Board decision, and remanded the matter to the Board for further consideration consistent with the terms of the JMR. In the July 2021 Board decision, the Board granted a 20 percent initial rating for the left leg disability and remanded the issue of whether a higher rating is warranted for the period beginning February 7, 2021, the effective date of changes in the relevant diagnostic codes. See 85 Fed. Reg. 76453 (Nov. 30, 2020). After remanding this case in January 2023, the Board again remanded the issue of a higher rating for the period beginning February 7, 2021. See November 2023 decision. Consequently, the AOJ issued the February 2025 supplemental statement of the case (SSOC) and the matter has returned to the Board for adjudication. The Board acknowledges that this case has been remanded multiple times previously. However, although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, a change in the law since the November 2023 Board decision necessitates a remand for addendum medical opinions. Entitlement to a disability rating in excess of 20 percent for a left leg disability, for the period on appeal beginning February 7, 2021. The Veteran's left leg disability is currently rated at 20 percent under Diagnostic Code 5262, for impairment of the tibia and fibula. See 38 C.F.R. § 4.71a. August 2021 rating decision codesheet. As stated previously, the issue on appeal is whether the Veteran is entitled to a higher disability rating for his left leg disability from February 7, 2021. As a result of the Board's November 2023 remand, the Veteran was afforded multiple VA examinations and opinions relevant to his claim. First, the Veteran was afforded VA examinations for his left leg disability in December 2023. The purpose of the examinations was to evaluate the Veteran's left leg disability under Diagnostic Code 5262, impairment of tibia and fibula. See 38 C.F.R. § 4.71a. The examinations were also meant to evaluate the residuals of the Veteran's left leg disability including but not limited to a left ankle disability under Diagnostic Code 5271 for limited motion of the left ankle, as well as a left knee disability under Diagnostic Code 5257 for knee instability. See November 2023 Board decision. After the December 2023 VA examinations, the same examiner rendered the October 2024 VA medical opinions regarding the Veteran's left leg, left knee, left ankle, and left tibia disabilities. Additionally, another VA examiner provided an addendum opinion in January 2025 regarding the Veteran's left ankle. Relevant to this remand, the December 2023 VA examiner stated that the Veteran's current treatment for his left leg disability, including left ankle and knee residuals was Ibuprofen. Recently, in Ingram v. Collins, No. 23-1798, the United States Court of Appeals for Veterans Claims (Court) ruled that the Board must discount beneficial effects of medication for musculoskeletal increased rating claims when the relevant rating criteria do not explicitly contemplate medication use. See also Jones v. Shinseki, 26 Vet. App. 56 (2012). Since the applicable diagnostic codes in this case that evaluate the ankle, knee, and leg do not explicitly contemplate medication use, the Board must discount the beneficial effects of medication when assigning an evaluation for the Veteran's musculoskeletal disability. The December 2023 VA examinations show that the Veteran consistently used Ibuprofen for his left leg disability, a condition that limits the Veteran's ability to walk and stand. The Veteran also reported that he had sporadic pain with all activities, and the pain could be dull or sharp. In the December 2023 VA examination and the October 2024 and January 2025 VA medical opinions, the examiner did not indicate whether the Veteran's left leg disability symptoms and the degree of functional limitation were with or without the use of Ibuprofen. Not stating whether the Veteran's medication affected the left leg disability symptoms and functional ability was a duty to assist error. See 38 U.S.C. § 5103A. As such, the Board will remand for an examiner to provide an addendum opinion on what the severity of the Veteran's left leg disability would be without the ameliorating impact of medication. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to determine the severity of the Veteran's left leg disability with and without the use of medication. The addendum opinion should be provided by the examiner that rendered the December 2023 VA examinations and October 2024 VA medical opinions, or the examiner that rendered the January 2025 VA medical opinion, if available. Otherwise, obtain an opinion from another qualified clinician. The examiner should review the December 2023 VA examinations, October 2024 VA medical opinions, and December 2025 VA medical opinion, and opine as to whether the results of those examinations and opinions were with the ameliorating effects of Ibuprofen. Specifically, the examiner should provide an opinion on what the Veteran's left leg disability symptoms would have been but for the ameliorating effects of medication. Additionally, the examiner should specifically address the ameliorating effects of medication on every aspect of the December 2023 VA Disability Benefits Questionnaires, October 2024 VA medical opinions, and January 2025 VA medical opinion, including but not limited to (1) all functional limitations of the left tibia, knee, and ankle including range of motion (ROM) (active and passive motion) after observed repetitive use, after repeated use over time, during a flare-up, and due to pain on both weightbearing and non-weightbearing positions; (2) with regard to Diagnostic Code 5257, the extent of any sprain or ligament tear (and repair thereof), the prescription and/or use of assistive devices (e.g., a cane, crutches, or a walker), the need for bracing for ambulation, and the extent and degree of instability; (3) with regard to Diagnostic Code 5262 MTSS/shin splints, the extent and duration of treatment, and responsiveness to surgery, shoe orthotics, or other conservative treatment. If the examiner opines that the medication would not have an impact, the examiner must specifically state that opinion. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a specific measurement without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The Veteran may also be scheduled for another VA examination if deemed necessary by the examiner to properly evaluate the left leg disability with and without the ameliorating impact of medication. 2. Then, readjudicate the issue on appeal. Wendy Daknis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brodbeck, Douglas E. 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.