TIBIA AND FIBULA IMPAIRMENT OF

Summary

The Veteran, who served from October 1984 to May 1986, appeals the denial of an increased rating for his right ankle condition and the denial of a compensable rating for a scar on his right ankle/fibula. The Veteran also appeals the denial of Total Disability based on Individual Unemployability (TDIU). The Board found that the Veteran's right ankle disability, characterized by instability and pain, more closely approximated marked ankle disability than the previously assigned 10 percent rating for limitation of motion. Applying the more favorable rating criteria under DC 5262 by analogy, the Board granted a 30 percent rating for the right ankle condition. The Board denied a compensable rating for the scar, finding it was not painful, unstable, or of sufficient size to warrant a rating, despite the Appellant's assertions to the contrary. For the TDIU claim, the Board found the evidence in relative equipoise regarding whether the Veteran's service-connected disabilities precluded him from substantially gainful employment. Applying the benefit of the doubt doctrine, the Board granted TDIU, finding the Veteran's service-connected right ankle and thigh disabilities significantly impacted his ability to perform the physical and mental acts required by employment.

Rationale

Instability and pain were predominant symptoms.; DC 5262 (impairment of tibia and fibula) is more appropriate by analogy than DC 5271.; Symptoms more nearly depicted marked disability (30 percent) under DC 5262.

Full Decision Text

Citation Nr: A26038876
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 210625-556089
DATE: April 27, 2026

ORDER

Subject to the laws and regulations governing the award of monetary benefits, entitlement to an initial 30 percent rating for residuals of resection distal right fibula (claimed as right ankle condition), for substitution purposes, is granted.

Entitlement to a compensable rating for scar associated with residuals of resection distal right fibula, for substitution purposes, is denied.

Subject to the laws and regulations governing the award of monetary benefits, for the entire appeal period, entitlement to a total disability rating based on individual unemployability (TDIU), for substitution purposes, is granted.

FINDINGS OF FACT

1. Due to constant pain and instability, the Veteran's right ankle disability more nearly approximated marked ankle disability.

2. The Veteran's scar on the right ankle/fibula was not deep, did not have an area of at least 39 square centimeters, was not unstable or painful, and did not result in any disabling effects.

3. The most competent and credible evidence is in relative equipoise as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow substantially gainful employment during the applicable appeal period.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial 30 percent rating for residuals of resection distal right fibula (claimed as right ankle condition) have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5262.

2. The criteria for entitlement to a compensable rating for scar associated with residuals of resection distal right fibula have not been met. 38 U.S.C. § 1155 (2024); 38 C.F.R. §§ 4.118, Diagnostic Code (DCs) 7801-02, 7804-05 (2025).

3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107 (2024); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2025).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1984 to May 1986. The Veteran died in August 2021. The Appellant is his surviving spouse. The Board sincerely thanks her for the Veteran's service.

In July 2025, the Agency of Original Jurisdiction (AOJ) issued a decision letter finding that the Appellant had been recognized as a substitute claimant.  While the formal finding itself did not state the basis for finding of substitution, earlier in the letter the AOJ explained that the Appellant had been found to meet the basic eligibility for substitution based on her status as the surviving spouse.  Under the AMA, the Board is bound by favorable findings made by the AOJ in the absence of evidence of clear and unmistakable error (CUE).  38 C.F.R. § 3.104(c).

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. However, in December 2025, the Appellant, through her representative, withdrew the hearing request. By withdrawing the hearing request, the Appellant had 90 days from the Board receiving the withdrawal to submit evidence. As such, the Board will only consider evidence considered by the AOJ prior to the April 2021 rating decision and evidence received within 90 days after the Board received the withdrawal of the hearing request.

If the Appellant would like VA to consider any evidence that was added to the claim file that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Under the AMA system of appeals, in order for the Board to take jurisdiction over a claim for entitlement to a TDIU rating due to the disability on appeal and for the holding in Rice v. Shinseki, 
 to consider any evidence that was added to the claim file that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision.

Under the AMA system of appeals, in order for the Board to take jurisdiction over a claim for entitlement to a TDIU rating due to the disability on appeal and for the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) to apply, the evidence of unemployability must: (1) be submitted prior to the AOJ decision or during an applicable 90-day evidence submission period; and (2) pertain to the period on appeal. The Board finds that the issue of entitlement to a TDIU rating has been raised in accordance with Rice.

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  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 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.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.

1. Entitlement to a rating in excess of 10 percent for residuals resection distal right fibula (claimed as right ankle condition). 

The Veteran was assigned a 10 percent rating for his right fibula disability under DC 5271, limitation of motion of ankle.

The rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. If a law or regulation changes during the course of 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). Thus, 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.

In this matter, the pertinent change made to DC 5271 is that moderate (10 percent) and marked (20 percent) limited motion are now specified by degrees. Prior to February 7, 2021, there were no degrees applied to the 10 and 20 percent ratings. According to the new criteria, moderate limitation of motion is depicted by dorsiflexion less than 15 degrees or plantar flexion less than 30 degrees. Marked limitation is depicted by dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees.

Turning now to the relevant evidence of the record, on the June 2012 VA examination report, the Veteran described right ankle pain was constant, daily, annoying, and sharp. Additional symptoms reported included popping, cracking, swelling, and giving away (twists ankle easily). His ankle was aggravated by jumping and prolonged walking. Flare-ups were described as daily aggravations that subsided after a period of rest, then pain would increase when getting up and walking again. Plantar flexion was 45 degrees or greater, dorsiflexion was 5 degrees. Interference with sitting, standing, and weight-bearing contributed to functional impairment or functional loss. The Veteran used a cane and walker occasionally. See June 2012 VA Examination.

In July 2014, it was reported that the Veteran's right ankle was unstable and he requested an ankle brace to be ordered. See April 2016 CAPRI.

On the October 2020 VA examination report, flare-ups occurred when the Veteran worked his ankle too hard. Flare-ups occurred dependent on the activity. The right ankle flare-ups never went away. Range of motion was within normal limits. Pain was noted on examination, but it did not cause functional loss. Pain was noted on dorsiflexion. The Veteran
lexion was 5 degrees. Interference with sitting, standing, and weight-bearing contributed to functional impairment or functional loss. The Veteran used a cane and walker occasionally. See June 2012 VA Examination.

In July 2014, it was reported that the Veteran's right ankle was unstable and he requested an ankle brace to be ordered. See April 2016 CAPRI.

On the October 2020 VA examination report, flare-ups occurred when the Veteran worked his ankle too hard. Flare-ups occurred dependent on the activity. The right ankle flare-ups never went away. Range of motion was within normal limits. Pain was noted on examination, but it did not cause functional loss. Pain was noted on dorsiflexion. The Veteran used a cane regularly for thigh pain and ankle pain. Thigh and ankle pain made it difficult for the Veteran to ambulate. Functional impact was described as impairment of walking and standing due to right ankle pain. See October 2020 C&P Exam. 

In an affidavit, the Appellant shared that the Veteran's right ankle pain was so severe that it he could hardly walk. She continued that his ankle would frequently turn inward and then lock in place, so he was walking on the inside of his foot. See December 2025 Hearing Related (Affidavit).

Initially, the Board finds, based on the evidence, that the former criteria prior to February 7, 2021, will be applied in this matter, as it is more favorable to the Veteran. Further, after a thorough consideration of the evidence, the Board finds that one of the predominant symptoms of the Veteran's right ankle (fibula) disability has been instability, a symptom he is not being compensated for under DC 5271 for limitation of motion of ankle.

The diagnostic codes relating to the ankle do not contain an appropriate diagnostic code to account for instability or laxity. The Board finds it appropriate to rate this manifestation by analogy using DC 5262, which used to rate impairment of the tibia and fibula and contemplates corresponding disability of the knee or ankle. See 38 C.F.R. § 4.71a, DC 5262. Under the former criteria, prior to February 7, 2021, impairment of the tibia and fibula warrants a 10 percent rating where there is malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace.

"Nonunion" is the "failure of the ends of a fractured bone to unite." Dorland's Illustrated Medical Dictionary (Dorland's) 1309 (31st ed. 2007). "Malunion" is "union of the fragments of a fractured bone in a faulty position." Id. at 1115.

Again, 20 percent is the maximum rating allowed under DC 5271. Under DC 5262, a higher rating is available, and the criteria is more contemplative of the characteristics and resulting impairment of the Veteran's right ankle (fibula) disability.

Accordingly, for the entire initial rating period, the Board finds that the Veteran's right ankle disability more nearly approximated marked ankle disability, which is contemplated by the 30 percent rating under DC 5262. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character. The Veteran had consistently reported weakness in his right ankle, sharing that he twisted his ankle easily. It has been documented that the Veteran wore an ankle brace and used assistive devices to help with ambulation. Therefore, the Board finds that those symptoms more nearly depict marked disability of the ankle (30 percent). However, a 40 percent rating is not warranted. Although the Veteran has used a brace, which is contemplated in the 40 percent rating, it has not been shown that the Veteran has had nonunion of the tibia or fibula or that a brace was required at all times. The 40 percent rating contemplates "loose motion". There has been no evidence to show his condition to be akin to such.

The Board acknowledges the Veteran's assertions of experiencing pain when moving. Regarding any entitlement to a separate rating under DC 5271, the Court of Appeals for Veterans Claims (Court or CAVC) has held that the regulatory definition of "disability" is the "impairment of earning capacity resulting from such diseases or injuries
, a 40 percent rating is not warranted. Although the Veteran has used a brace, which is contemplated in the 40 percent rating, it has not been shown that the Veteran has had nonunion of the tibia or fibula or that a brace was required at all times. The 40 percent rating contemplates "loose motion". There has been no evidence to show his condition to be akin to such.

The Board acknowledges the Veteran's assertions of experiencing pain when moving. Regarding any entitlement to a separate rating under DC 5271, the Court of Appeals for Veterans Claims (Court or CAVC) has held that the regulatory definition of "disability" is the "impairment of earning capacity resulting from such diseases or injuries and their residual conditions." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). DC 5262 evaluates according to the severity level of the "disability." The requirement of an ankle "disability" under DC 5262 is broad enough to encompass all symptoms attributing to the impairment of earning capacity, including pain, limitation of motion, stiffness, and instability. DC 5262, in a way, acts as a catch all for a disability not depicted by the other diagnostic codes evaluating the ankle. In this current case, based on the medical and lay evidence, the Board finds that an additional rating under DC 5271 during this period would constitute impermissible pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  Associating pain and resulting limitations are contemplated in the rating assigned under DC 5262.

The Board has also considered whether the Veteran is entitled to separate or higher ratings under the other DCs evaluating the ankle. The evidence does not show that the Veteran exhibits ankylosis or the functional equivalent of ankylosis (5270 and 5272), such as that his ankle has not been shown to be fixed in a particular degree of dorsiflexion or plantar flexion. The Board acknowledges that the Appellant shared that the Veteran's ankle would turn inward and lock in place, resulting in him walking on the inside of his foot. However, the Board has considered the Veteran's contemporaneous statements concerning his right ankle symptoms and he has not described feeling as if his ankle in stuck in a certain position or exhibited any symptoms akin to the symptoms contemplated by DC 5270. Again, he described his ankle twisting easily and giving way, not being stiff or locked in a position.

The evidence also does not show that he has malunion of os calcis or astragalus (5273), or astragalectomy (5274). Thus, the assignment of ratings under these DCs are not warranted in this matter.

In summation, for the entire initial rating period, the Veteran is entitled to a 30 percent rating under DC 5262 for his right ankle (fibula) disability.

2. Entitlement to a compensable rating for scar associated with residuals of resection distal right fibula.

The Veteran was assigned a noncompensable (0 percent) rating under DC 7805 for his scar. Scars are rated under 38 C.F.R. § 4.118, DCs 7800 through 7805. The rating criteria for evaluating skin disorders under 38 C.F.R. § 4.118 were amended effective August 13, 2018.

DC 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. DC 7800 is not applicable in this matter, as the Veteran's scar was not located on his head, face, or neck.

Prior to the amendments, DC 7801 applied to burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear. A minimum 10 percent rating was assigned for an area(s) of at least 6 square inches (30 sq. cm.) but less than 12 sq. inches (77 sq. cm.). A deep scar was associated with underlying soft tissue damage. Effective August 13, 2018, DC 7801 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. Area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) is assigned a 20 percent rating
 less than 12 sq. inches (77 sq. cm.). A deep scar was associated with underlying soft tissue damage. Effective August 13, 2018, DC 7801 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage, in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. Area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) is assigned a 20 percent rating. Area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) is assigned a 30 percent rating. Area or areas of 144 square inches (929 sq. cm) or greater is assigned a 40 percent rating.

Prior to August 13, 2018, DC 7802, was for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that were superficial and nonlinear. DC 7802 was amended to evaluate burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. Otherwise, the criteria remained unchanged. Under DC 7802, a 10 percent rating is assigned when the scar(s) cover an area or areas of 144 square inches (929 sq. cm) or greater. No other rating is provided by this Diagnostic Code. Note (1) states that a superficial scar is one not associated with underlying soft tissue damage.

DC 7804 provides that one or two scars that are unstable or painful warrant a 10 percent evaluation. A 20 percent rating is warranted when three or four scars are unstable or painful. A 30 percent rating is warranted when five or more scares are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, the rater is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id. at Note (3).

DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effects not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118.

Turning now to the relevant evidence of the record, in the June 2012 VA examination report for ankle conditions, it was noted that the scar was not painful and/or unstable, or the total area greater than 39 square cm (6 square inches). In the October 2020 VA examination report, characteristics of the scar were not reported. There were no reports from the Veteran regarding complaints of any associating symptoms of his scar. 

After a thorough consideration of the evidence, the Board finds a compensable rating is not warranted. The evidence has shown that the scar was not painful, unstable, or measure to a total area equal to or greater than 39 sq. cm. The scar was not deep or associated with underlying soft tissue damage. Additionally, the scar had not been shown to cause any limited motion and any other symptoms. The Veteran did not report experiencing any associating symptoms or limitations as a result of his scar. There is no evidence indicating that his scar caused any impairments. The Board acknowledges the Appellant's belief that the scar was 10 inches long, and it frequently caused him discomfort due to burning and itching. However, this is not consistent with the evidence of the record contemporaneous with examinations or evaluations pertaining to the scar. The totality of the evidence does not support that a compensable rating is warranted for the scar.

Accordingly, while the Board is sympathetic to the Veteran and Appellant's claim, entitlement to a compensable rating for scar on right ankle (fibula) must be denied at this time.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disability or disabilities. In light of the
 However, this is not consistent with the evidence of the record contemporaneous with examinations or evaluations pertaining to the scar. The totality of the evidence does not support that a compensable rating is warranted for the scar.

Accordingly, while the Board is sympathetic to the Veteran and Appellant's claim, entitlement to a compensable rating for scar on right ankle (fibula) must be denied at this time.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).

A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disability or disabilities. In light of the Court's decision in Witkowski v. Collins, 38 Vet. App. 459  (2025), while noting that the Veteran did not meet the schedular threshold, the Board will proceed directly to consideration of whether the Veteran's service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment during the applicable appeal period. 

For a Veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The Veteran is service connected for right ankle (fibula) disability, right hamstring disability, tinnitus, and scar on the right ankle/fibula.

The record shows that Social Security Administration (SSA) determined that the Veteran was disabled due to multiple disabilities, and that due to the severity of physical limitations, he would be unable to sustain even sedentary residual functional capacity. It was also reported that the Veteran could not work due to DJD of right ankle and instability. See May 2016 Medical Treatment Records - Furnished by SSA.

At the time of the June 2012 VA examination, the Veteran had been unemployed for seven (7) years. Records show that he had worked as a self-employed electrician. In a September 2016 Mental Health Initial Evaluation Note, regarding education, it was reported that the Veteran was in receipt of his GED. Pertaining to employment, he was currently unemployed and disabled. It was also stated that he was "unemployable." See October 2016 CAPRI.

At an October 2019 Board hearing, the Veteran shared that he had to tailor his employment and work for himself, so he would be able to set his own pace. He indicated that his right ankle and right thigh disabilities impacted his ability to work. See October 2019 Hearing Transcript.

After a thorough consideration of the evidence, the Board finds that the evidence is in relative equipoise regarding whether the Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment during the applicable appeal period. The Board acknowledges that there is evidence showing that nonservice-connected disabilities may have contributed to his physical and mental inability to maintain employment. However, there is also evidence showing that his service-connected right ankle and right thigh disabilities factored into his ability to perform the acts required for employment. 

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?

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Board shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, resolving reasonable doubt in favor of the Veteran and Appellant, the Board finds that his service-connected disabilities rendered him unable to secure or follow substantially gainful employment and significantly impacted his ability to perform the physical and mental acts required by employment during the entire applicable appeal period. Accordingly, the Board finds that a TDIU is warranted.

 

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Middleton, 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.