Citation Nr: 1640421 Decision Date: 10/12/16 Archive Date: 10/27/16 DOCKET NO. 10-29 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to a rating in excess of 10 percent for lumbar strain. 3. Entitlement to a rating in excess of 10 percent for right knee chondromalacia. 4. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome. 5. Entitlement to a rating in excess of 10 percent for a right ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1989 to January 1999 and from February 2003 to September 2004, and had additional service in the National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). A February 2008 rating decision reconsidered an April 2007 rating decision and granted service connection for low back and left knee disabilities, rated 0 percent, each; denied increased ratings for right ankle and right knee disabilities; and denied service connection for a right hip disability. A June 2010 rating decision increased the rating for the left knee disability to 10 percent, effective July 2006. A June 2013 rating decision increased the rating for low back disability to 10 percent, effective July 2006. In April 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In July 2015, the Board remanded these matters for additional development. The July 2015 Board decision also reopened and granted the Veteran's claim of service connection for bilateral pes planus; reopened and remanded the matter of service connection for a left ankle disability; remanded the matter of service connection for a psychiatric disability; and denied service connection for a left eye disability and bilateral hearing loss. A February 2016 rating decision granted service connection for a depressive disorder (claimed as posttraumatic stress disorder), a left ankle disability, and migraine headaches. Those matters are resolved. The matters of the ratings for right knee chondromalacia and left knee patellofemoral pain syndrome are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran is not shown to have a right hip disability. 2. The Veteran's lumbar strain is manifested by slight limitation of motion, with flexion to at least 80 degrees, combined range of motion of, at least, 190 degrees, and no guarding or spasms, or separately ratable neurological symptoms. 3. The Veteran has no more than moderate limitation of right ankle motion, with no evidence of pain on motion. CONCLUSIONS OF LAW 1. Service connection for a right hip disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. A rating in excess of 10 percent for lumbar strain is not warranted. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5237 (2015) 3. A rating in excess of 10 percent for right ankle sprain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, 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 letters dated in September 2006 and July 2007. 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 appeal seeking an increased rating for lumbar strain is from the initial rating assigned with the award of service connection. The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). A statement of the case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. The Veteran's service treatment records (STRs), and VA medical records have been secured. He was afforded VA examinations to determine the existence and etiology of a right hip disability and the severity of his right ankle and low back disabilities. VA's duty to assist is met. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that a RO official or VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the April 2015 Travel Board hearing, the undersigned identified the issues and advised the Veteran of what remains necessary to substantiate these claims. A deficiency in the conduct of the hearing is not alleged. Factual Background, Legal criteria and Analysis 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). The Veteran's STRs show that in a March 2004 statement of medical examination and duty status, the Veteran related that he sprained his right knee and right ankle running an obstacle course at Ft. McCoy. A July 2004 medical assessment report again notes that he sprained his right knee and right ankle on an obstacle course at Ft. McCoy in March 2004. On November 2006 VA examination, the Veteran reported right ankle pain and discomfort. He noted he was limping more, especially at work where he did a fair amount of walking. He said he did not get much relief from cortisone injections. It was noted he had right ankle surgery in January 2006. He stated he used an ankle brace. Examination of the right ankle found tenderness to palpation along the lateral malleolus. There was no excessive warmth. Dorsiflexion was to 10 degrees and plantar flexion was to 35 degrees, without pain. Inversion and eversion were each to 10 degrees. He showed give way strength with resistance to inversion and eversion. There was no pain with internal or external rotation of the hip. The Veteran had no additional functional impairment due to weakness, fatigability, incoordination or flare-ups. He used a brace and a cane, mostly for the right ankle. The impression was recurrent right ankle strain. The examiner stated the Veteran showed no significant loss or functional limitation regarding the right ankle. It was also noted that there were no incapacitating episodes or radiation of pain. The condition had no effect on his usual occupation or daily activities. A March 2007 physical profile shows the Veteran was found unfit for extension due to right ankle instability and osteochondral defect. On January 2008 VA joints examination, the Veteran complained of low back pain. He stated that he had intermittent flare-ups of back pain, but was able to perform the activities of daily living. It was noted that there was no numbness or tingling in the extremities. Examination of the back found he had "full forward flexion from 15 degrees to 140 degrees," with pain at 120 degrees. He was able to toe and heel raise. He had a slight antalgic gait favoring the right side. Reflexes were 2+ and muscle strength was 5/5. Straight leg raising was negative. There was tenderness to palpation, but no fatigability or muscle weakness. The impression was mild lumbar strain. It was noted that lumbar spine X-rays were interpreted as normal. In February 2008, W.F. stated he had known the Veteran for six years and that when he returned from service in 2004, he had a very noticeable limp and frequent complaints concerning his ankles. VA outpatient treatment records show that in August 2007, the Veteran related that while running an obstacle course in service he twisted his right ankle, and fell on his back and right hip. Examination found mild edema surrounding the right ankle. Dorsiflexion was from 0 to 15 degrees and plantar flexion was from 0 to 50 degrees. There were no findings concerning the right hip. In September 2009, the Veteran complained of right ankle pain. The assessment was right ankle sprain. On May 2013 VA ankle examination, the Veteran reported he had flare-ups. Examination found that dorsiflexion was to 10 degrees and plantar flexion was to 30 degrees, with no objective evidence of pain. He was able to perform repetitive use testing with three repetitions, without additional limitation of motion. The Veteran did not have any functional loss or impairment of the ankle. He did not have localized tenderness or pain on palpation. Muscle strength testing was 5/5. Stability tests were normal. He did not have ankylosis. No residuals of the January 2006 surgery were noted. It was stated that the Veteran used a brace for ankle support occasionally. The diagnosis was postoperative right ankle ligament repair. The examiner stated that the disability did not impact on the Veteran's ability to work. On May 2013 VA back examination, the Veteran reported he had occasional flare-ups with low back pain. Examination found forward flexion to 80 degrees; extension to 10 degrees; lateral flexion to 15 degrees bilaterally; and rotation to 20 degrees bilaterally. There was no objective pain on any motion. He was able to perform repetitive use testing with no additional limitation of motion. He did not have any functional loss and/or functional impairment of the thoracolumbar spine. The Veteran did not have localized tenderness or pain to palpation. There was no guarding or muscle spasm. Muscle strength testing was 5/5 throughout. There was no muscle atrophy. Reflexes were 2+ at the knees, ankles and great toes. Sensory examination was normal. Straight leg raising was negative bilaterally. There were no signs or symptoms due to radiculopathy. He did not have intervertebral disc syndrome of the thoracolumbar spine. He did not use an assistive device for the lumbar spine. The diagnosis was lumbar strain. The examiner stated that the lumbar spine condition did not impact on the Veteran's ability to work. On October 2015 VA ankle examination, the Veteran reported pain in the right ankle when he walked on gravel at work. He denied flare-ups. Examination found that range of motion was normal, with dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. No pain was noted. There was objective evidence of pain with weight bearing, but there was no objective evidence of localized tenderness or pain on palpation of the joint. There was no crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or change in the range of motion. It was noted that pain, weakness, fatigability or incoordination did not significantly limit the Veteran's functional ability with repeated use over a period of time. The right ankle disability caused disturbance of locomotion and interference with standing. Strength testing was 4/5; there was no muscle atrophy. The ankle was not ankylosed. There was no indication of ankle instability or dislocation. It was noted he used a brace regularly. The diagnoses were deltoid ligament strain and synovitis of the right ankle. The examiner opined that the right ankle condition did not impact on the Veteran's ability to perform occupational tasks such as standing, walking, lifting or sitting. On October 2015 VA hip examination, the Veteran stated that in 2003 he fell on an obstacle course, injuring his right hip (at the same time he injured his low back and knees). He said the right hip was better. Examination found that range of motion was normal with no evidence of pain with weight bearing. There was no evidence of crepitus. The examiner stated that the Veteran did not have a current diagnosis associated with the right hip. He opined that it was at least as likely as not that a right hip condition was incurred in or caused by the claimed in-service injury. He noted that the Veteran injured his right hip on an obstacle course in service, but that the hip condition had resolved. He remarked that there was no disability, and that the Veteran did not have pain at that time. He said that the right hip was normal on examination. On October 2015 VA back examination, the Veteran stated his back pain was not as severe since he was not carrying a ruck sack. He noted he worked for a railroad and was on his feet all day. He denied flare-ups or functional loss of the lumbar spine. Examination found that range of motion was normal, with forward flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion and rotation were both from 0 to 30 degrees bilaterally. It was noted that there was pain on forward flexion, but it did not result in functional loss. There was evidence of pain on weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. It was noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. There was no guarding or muscle spasm. The low back disability caused disturbance of locomotion and interference with standing. Muscle strength testing was 5/5. There was no muscle atrophy. Reflexes were 2+ bilaterally. A sensory examination was normal bilaterally. Straight leg raising was negative bilaterally. There was no evidence of radiculopathy. The Veteran did not have intervertebral disc syndrome of the lumbar spine. The diagnosis was lumbosacral strain. The examiner stated that the lumbar spine condition did not impact on the Veteran's ability to work. There was no additional increased pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. The examiner stated it was a mild disability. Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of: A disability for which service connection is sought; a disability that is already service connected; and that the service connected disability caused or aggravated the disability for which service connection is sought. At the April 2015 hearing before the undersigned, the Veteran related his right hip pain to injuries he sustained in a fall on an obstacle course in service. The Board acknowledges that STRs confirm a fall on an obstacle course. However, during service the Veteran did not report any right hip problems related to such fall, suggesting that any right hip symptoms he may have experienced following the fall were acute and transitory and resolved without residual disability. Of greater significance is that the medical evidence of record does not show a current right hip disability. On October 2015 VA examination, the examiner while acknowledging that the Veteran sustained a right hip injury in service, found that he did not have a current right hip disability of the right hip. Service connection is limited to those cases where disease or injury has resulted in a current disability. In the absence of proof of the disability for which service connection is sought, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Here, there is no proof that the Veteran now has a right hip disability. Accordingly, he has not met the threshold requirement for substantiating a claim of service connection for such disability, and the appeal in this matter must be denied. Increased rating 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. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed 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). This analysis is undertaken with consideration of the possibility that staged ratings may be warranted for different time periods, if warranted by facts found. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Lumbar strain Lumbar strain is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides that a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine limited to 30 degrees or less; or for favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine is greater than 120 degrees, but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of height. Notes following provide that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Notes 1 and 2. On January 2008 VA examination Veteran's lumbar spine range of motion was characterized as full. While there was tenderness to palpation, there was no fatigability or muscle weakness, and the low back disability was described as mild. The findings on May 2013 and October 2015 VA examinations likewise warrant a rating no higher than the current 10 percent. The May 2013 examination found forward flexion only slightly limited (to 80 degrees), and combined range of motion was 190 degrees (far short of the limitations that would warrant a 20 percent rating under the current criteria). There was no evidence of pain and no functional loss. The most recent (October 2015) VA examination found the Veteran has full range of lumbar spine motion, with some pain only on forward flexion, and no evidence of muscle spasm or guarding. Separately ratable neurological manifestations were not noted. Such findings do not meet or approximate the schedular criteria for the next higher (20 percent) rating noted above. The Veteran is not shown to have intervertebral disc syndrome (so as to warrant consideration of alternative rating criteria under Code 5243 (for incapacitating episodes of disc disease). The symptoms and related functional impairment the Veteran describes in his own reports do not satisfy the schedular criteria for a rating in excess of 10 percent for lumbar strain. Accordingly, the Board finds that the preponderance of the evidence is against this claim and that the appeal in the matter must be denied. Right ankle A 20 percent rating is warranted when limitation of ankle motion is marked. When limitation of ankle motion is moderate, a 10 percent rating is warranted. 38 C.F.R. § 4.71a, 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. As is noted above, the Veteran underwent right ankle surgery in January 2006. On November 2006 VA examination there was some limitation of right ankle motion, but no pain and it was noted there was no significant functional limitation. Similar findings were present on the May 2013 VA examination. At that time, dorsiflexion was to 10 degrees and plantar flexion was to 30 degrees. It was again noted that there was no pain. There was no ankylosis. These findings show no more than moderate limitation of motion of the right ankle. The most recent VA examination found that the Veteran had full range of right ankle motion. On the May 2013 and October 2015 VA examinations the examiner found there was no additional functional loss after repetitive use testing. The symptoms and related functional impairment the Veteran describes in his own reports do not satisfy the schedular criteria for a rating for right ankle sprain in excess of 10 percent. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the right ankle sprain, and that the appeal in the matter must be denied. Additional considerations The Board has considered whether referral of these matters for consideration of an extraschedular rating is warranted, but finds that all identified symptoms and impairment associated with the Veteran's low back and right ankle disabilities are encompassed by the criteria for the schedular ratings assigned. He has not alleged any manifestations or functional impairment of function not encompassed by the schedular criteria for the current ratings. Therefore, the schedular criteria are not inadequate, and referral for consideration of an extraschedular rating is not necessary. Thun v. Peake, 22 Vet. App. 111 (2008). The record does not suggest, nor has the Veteran alleged, that his service connected lumbar strain or right ankle disability prevents him from being gainfully employed; there is no indication in the record that by virtue of these disabilities he is rendered incapable of gainful employment. While VA examiners have found that the disabilities may place restrictions on some work-related activities, they have repeatedly concluded that the disabilities do not impact on the Veteran's ability to work. See e.g. October 2015 VA ankle and back examination reports. Accordingly, the matter of entitlement to a TDIU rating is not raised in the context of the instant claims for increase. ORDER Service connection for a right hip disability is denied. A rating in excess of 10 percent for lumbar strain is denied. A rating in excess of 10 percent for right ankle sprain is denied. REMAND Regarding the ratings for the Veteran's right and left knee disabilities. The Board notes that when was examined by VA in October 2015, the range of right knee motion was from 0 to 110 degrees, and left knee motion from 0 to 120 degrees. The examiner also noted that there was ankylosis in the right knee in flexion between 20 and 45 degrees, and ankylosis in the left knee in flexion between 10 and 20 degrees. (and that the knee disabilities were only mildly disabling). The findings of the ranges of motion reported are inconsistent with the findings of ankylosis (immobility) at the positions reported, and must be reconciled. The case is REMANDED for the following: 1. The AOJ should secure for the record updated (all not already associated with the record, to the present) records of the evaluations and treatment the Veteran has received for his knees. He must assist in this matter by identifying all providers of evaluations and treatment he has received since October 2015. 2. The AOJ should then arrange for the Veteran to be examined by an orthopedist to assess the severity of his right and left knee disabilities/reconcile the inconsistent findings reported by the October 2015 VA examiner. The entire record must be reviewed by the examiner in conjunction with the examination. Studies conducted should include passive and active ranges of motion, both weight-bearing and non-weight-bearing, with notation of any additional functional limitations due to factors such as use, weakness, pain, etc. The examiner should specifically indicate whether or not each knee is ankylosed. The examiner should comment on any restrictions on occupational and daily activity functions due to the disabilities. 3. The AOJ should then review the record and readjudicate the remaining claims. If either remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs