Citation Nr: 1624609 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 13-23 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a left knee disability. 2. Entitlement to a rating in excess of 10 percent for right ankle sprain. REPRESENTATION Appellant represented by: Christopher L. Kannady, Attorney ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from January 1991 to January 1995. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for left knee and right ankle disabilities, and assigned a 10 percent evaluation for each disability. FINDINGS OF FACT 1. The Veteran's left knee disability is manifested by range of motion no worse than from 0 to 120 degrees, with pain on movement. 2. The Veteran has full range of motion of the right ankle, with pain on movement. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for a left knee disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2015). 2. A rating in excess of 10 percent for a right ankle disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in November 2012. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's private and VA medical records have been secured. He was afforded a VA examination in January 2013 to determine the severity of his left knee and right ankle disabilities. VA's duty to assist is met. Factual Background, Legal criteria and Analysis The Veteran is currently service connected for left knee and right ankle disabilities, each evaluated as 10 percent disabling. The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Private medical records show that magnetic resonance imaging of the right ankle in November 2012 suggested a tendon strain, but no tendon tear. In November 2012, the Veteran reported he had difficulty going down stairs and any activity that involved bending his knee. An examination showed minimal effusion and tenderness. There was no laxity or swelling. Range of motion was from 0-135 degrees. McMurray's test was negative. Anterior and posterior drawer signs were negative. Examination of the right ankle revealed no swelling. There was tenderness at the talo-fibula ligament. No crepitus was reported. Range of motion was normal. The impressions were left knee lateral patellar pressure syndrome; patellofemoral pain syndrome; quadriceps atrophy; right ankle pain; recurrent instability of the right ankle; and tendinosis peroneus longus. A VA examination of the left knee was conducted in January 2013. The Veteran reported popping noises and extreme pain with every activity. An examination demonstrated range of motion was from 0-120 degrees with pain. There was no change in the range of motion upon repetitive use testing. The functional loss consisted of pain on movement. There was tenderness to palpation. Muscle strength was 5/5. No instability was noted and there was no dislocation. The diagnosis was healed fracture deformity with degenerative spur, status post left knee surgery. The examiner instated that the impact on the Veteran's ability to work was that he was not to run. On January 2013 VA examination of the right ankle, the Veteran complained of very sharp pain in the ankle during walking or any activity. An examination showed that plantar flexion was to 45 degrees or greater and dorsiflexion was to 20 degrees or greater. There was pain at the endpoints of motion. There was no change in the range of motion upon repetitive use testing. Muscle strength testing was 5/5 at the ankle. Stability tests were normal. There was no ankylosis. It was noted the Veteran used a brace for the right ankle pain. The diagnosis was right ankle sprain. The impact of the right ankle disability on the Veteran's ability to work was that he was not to run. Additional private medical records show that in March 2013, the Veteran reported moderate to severe pain in the left knee. He stated his symptoms were worse with walking. An examination of the left knee found minimal effusion. There was no laxity or swelling. Range of motion was from 0 to 135 degrees. McMurray's test was negative. Anterior and posterior drawer signs were negative. There was no swelling or crepitus of the right ankle. Tenderness was noted. The impressions were left knee lateral patellar pressure syndrome; patellofemoral pain syndrome; quadriceps atrophy; right ankle pain; recurrent instability of the right ankle; and tendinosis peroneus longus. The Veteran complained of left knee pain in May 2014. The examiner noted that motion was good. The impression was left knee chondromalacia. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appeal is from the initial rating assigned with the award of service connection, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Analysis - Left knee A 30 percent rating is to be assigned when flexion of the leg is limited to 15 degrees, a 20 percent rating when flexion is limited to 30 degrees, and a 10 percent rating when flexion is limited to 45 degrees,. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 50 percent rating is to be assigned when extension of the leg is limited at 45 degrees; a 40 percent rating when extension is limited at 30 degrees; a 30 percent rating when extension is limited at 20 degrees; a 20 percent rating when extension is limited at 15 degrees; and a 10 percent rating when extension is limited at 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Separate ratings may be assigned for compensable limitation of flexion and extension of the knee. VAOPGCPREC 9-2004. The record shows that the Veteran has minimal limitation of motion of the left knee. The range of motion has been recorded on three occasions, including the January 2013 VA examination. At no time has the limitation of motion been to the extent necessary to assign a compensable rating. In fact, the January 2013 showed that range of motion of the left knee was 0-120 degrees, and this represents the most limitation of motion in the record. Clearly, the 10 percent rating has been assigned based on pain. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran's left knee disability. See DeLuca v. Brown, 8, Vet. App. 202 (1995). The VA examination shows that there was no additional functional loss following repetitive use testing. Any pain the Veteran has is not shown to have caused restriction warranting an increased rating, and is contemplated by the rating assigned for the left knee. In addition, subluxation or instability of the left knee has not been shown. Thus, entitlement to a separate evaluation for such impairment is not warranted for the left knee. See VAOPGCPREC 23-97 (July 1, 1997). The Veteran is competent to report symptoms he experiences, including pain and limitation of motion. However, his own reports do not satisfy the schedular criteria for a higher rating for a left knee disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for a left knee disability. Analysis - Right ankle A 20 percent evaluation may be assigned for marked limitation of motion of the ankle. When moderate, a 10 percent rating may be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5271 Normal range of motion of the ankle is dorsiflexion from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. There is no indication in the record that the Veteran has limitation of motion of the right ankle. On private evaluation in November 2012, the examiner stated that range of motion was normal. The January 2013 examination also demonstrated that the range of motion of the right ankle was normal. It was indicated there was pain at the extremes of motion. While he uses a brace for the pain, examinations have shown there is no instability of the ankle. The Veteran is competent to report symptoms he experiences, including pain and limitation of motion. However, his own reports do not satisfy the schedular criteria for a higher rating for a right ankle disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for a right ankle sprain. The Board has considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.10, 4.40 and 4.45 would warrant a higher rating for the Veteran's right ankle disability. See DeLuca v. Brown, 8, Vet. App. 202 (1995). The VA examination shows that there was no additional functional loss following repetitive use testing. Any pain the Veteran has is not shown to have caused restriction warranting an increased rating, and is contemplated by the rating assigned for the right ankle. Additional considerations The Board has considered whether referral of these matters for consideration of an extraschedular rating is warranted, but finds that all symptoms and impairment associated with the left knee and right ankle disabilities are encompassed by the schedular criteria for the ratings now assigned. The Veteran has not alleged any functional impairment that is not encompassed by those criteria. Therefore, they are not inadequate, and referral for consideration of an extraschedular rating is not necessary. See Thun v. Peake, 22 Vet. App. 111 (2008). It is neither shown nor alleged that the Veteran's left knee and right ankle disabilities preclude him from being gainfully employed. The examiner noted following the January 2013 VA examination that the impact on employment of the Veteran's left knee and right ankle disabilities was that he should not run. This does not suggest the Veteran is incapable of employment. Accordingly, the matter of entitlement to a total rating based on individual unemployability due to service-connected disability is not raised by the record in the context of this claim. The Board notes that this decision does not leave the Veteran without recourse. If the service-connected disabilities should worsen in the future, the Veteran is free to file a new claim for an increased rating. However, for the Board to award additional compensation based on the mere potential for such worsening would be premature at this time. ORDER An increased rating for a left knee disability is denied. An increased rating for a right ankle disability is denied. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs