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Veterans Law

Board Improperly Denied Compensable Rating for Veteran’s Right Leg Fracture Residuals

Michael Lostritto

May 12, 2019

Updated: February 16, 2024

Court Win- Increased Rating right leg fracture

Summary of the Case

The Veteran served in the United States Air Force from 1981 to 2008 and retired honorably.  During his service, he fractured the tibia and fibula of his right leg, between the knee and ankle.  Upon retirement, he filed a claim for service connection for the residuals of this injury.  X-rays show the fracture is healed, but the Veteran’s right leg is now shorter than his left leg by ½ to ¾ of an inch.  In an April 2008 VA examination, his symptoms were described as a chronic dull ache exacerbated by cold weather, running, and lifting heavy weights.  Following this examination, the Regional Office granted the Veteran’s claim for service connection.  Since fracture residuals are not specifically listed in the rating schedule, the Regional Office rated this disability by analogy to malunion of the tibia and fibula under Diagnostic Code (DC) 5262.  For this DC, a 20 percent disability rating is available with moderate knee or ankle disability while a 30 percent disability rating is assigned where there is marked knee or ankle disability.  The maximum 40 percent schedular rating is assigned with loose motion requiring a brace.  In the Veteran’s case, the Regional Office determined a noncompensable rating was appropriate because “no residual dysfunction was found upon examination” and because there was no malunion of the tibia and fibula with slight knee or ankle disability.  The Veteran appealed to the Board for a higher rating because he believed that the functional loss associated with his disability was compensable.

In its June 2017 decision that denied a compensable rating for his right leg fracture residuals, the Board disagreed with the Veteran’s assertions.  Specifically, the Board found that because the Veteran’s right leg disability does not involve any functional loss associated with a joint, it was not required to consider the applicability of 38 CFR § 4.40, the regulation that describes how to evaluate the functional loss that results from musculoskeletal disabilities.  The Board relied on the Veteran’s prior examinations and concluded that a compensable rating under DC 5262 was not warranted because there was no malunion of the tibia and fibula, and evaluations of the Veteran’s knee and ankle revealed no abnormality.  In its decision, the Board also noted that because of the Veteran’s associated leg length discrepancy, it also consulted DC 5275 for shortening of the bones of the lower extremity.  However, under that DC, there must be a discrepancy of at least 1.25 inches to obtain even a minimally compensable rating.  Therefore, the Board found that the Veteran was not entitled to a higher rating under DC 5275.

CCK Argues for Higher Rating for Veteran’s Right Leg Fracture Residuals

CCK successfully appealed to the Court of Appeals for Veterans Claims (CAVC) the Board decision that denied a compensable rating for the Veteran’s right leg fracture residuals, in part because it determined that it was not obligated to consider the functional loss resulting from a disability that does not originate in a joint.  CCK asserted that the Board erred when it found that it did not have to consider functional loss under 38 CFR § 4.40 insofar as the Board’s analysis for rating musculoskeletal disabilities is not confined solely to the criteria in a particular DC.  CCK argued that § 4.40 applies to DC 5265 because the tibia is part of the musculoskeletal system and § 4.40 talks specifically about the musculoskeletal system.  Here, evidence documents a deformity of the Veteran’s right leg resulting in leg length discrepancy and chronic pain.  Therefore, the nature and manifestations of his disability are contemplated by § 4.40 and the Board erred when it determined otherwise.

Further, CCK noted that a veteran might be entitled to a disability rating higher than that supported by mechanical application of the rating schedule when there is evidence that his disability causes additional functional loss.  The Board must evaluate this functional loss and determine the extent to which it impairs the veteran before it decides whether a particular rating more accurately describes the overall effect of the disability on the veteran’s ability to work.  However, the Board did not do so in this case.

Court Agrees the Board Erred and Remands the Veteran’s Case

CCK argued, and the Court agreed, that 38 CFR § 4.40 applies to bones and not just joints.  The Court found that the Board’s error was compounded when it relied on a September 2016 VA examination that did not adequately portray the Veteran’s functional loss during flare-ups.  Additionally, the Court determined that the Board erred when it failed to consider the applicability of 38 CFR § 4.59, which provides for a minimally compensable rating for painful motion.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

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