Citation Nr: 1803130 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 11-19 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a bilateral ankle disability, to include as secondary to service-connected chondromalacia of the bilateral knees. 2. Entitlement to an increased rating for chondromalacia of the right knee with degenerative joint disease, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for chondromalacia of the left knee with degenerative joint disease, currently evaluated as 10 percent disabling REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from December 1972 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge at the RO in August 2013. A transcript of this hearing is in the claims folder. These matters were previously before the Board in May 2014, but were remanded for additional development. In addition, the Veteran's petition to reopen a previously denied claim of service connection for a back disability on the basis of new and material evidence was denied. Furthermore, the Board explained why a claim for an increased rating of a scar of the left knee was not on appeal, and also explained why a June 2010 statement of the Veteran did not constitute a motion of reconsideration regarding a previous Board decision. The reasons and bases for these determinations were provided in that decision, and will not be revisited at this time. The May 2014 Board decision also noted that a claim for a total rating based on individual unemployability due to service connected disabilities (TDIU) may be a component of a claim for an increased rating if raised by either the Veteran or the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the May 2014 decision added that entitlement to TDIU was specifically addressed, adjudicated, and denied in the June 2011 rating decision on appeal. It concluded that as the Veteran did not submit a notice of disagreement with the denial of TDIU, it did not need to be further addressed on appeal. In February 2017, the Board remanded these issues once again for additional development. This has been completed, and the matter has been returned for further appellate review. As noted in the February 2017 remand, the Board observes that after the May 2014 decision was issued, the Veteran initiated yet another attempt to reopen his previously denied claim of service connection for a back disability on the basis of new and material evidence. This was denied in a January 2015 rating decision. The Veteran submitted a notice of disagreement with this decision in May 2015, and a statement of the case was provided to him in May 2016. However, the Veteran failed to submit a substantive appeal, and this matter was not certified to the Board. Therefore, it is not on appeal. 38 C.F.R. § 20.200 (2017). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, he has a current diagnosis of bilateral mild arthritis of the ankles that is proximately due to his service connected knee disabilities. 2. The right knee has had limitation of extension to as much as 10 degrees but no more during the appeal period, without evidence of additional limitations due to pain, weakness, fatigability or incoordination with repetitive use or flare-ups; it does not have limitation of flexion to a compensable degree, subluxation, or instability. 3. The left knee has had limitation of extension to as much as 10 degrees but no more during the appeal period, without evidence of additional limitations due to pain, weakness, fatigability or incoordination with repetitive use or flare-ups; it does not have limitation of flexion to a compensable degree, subluxation, or instability. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral mild arthritis of the ankles have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2014); 38 C.F.R. § 3.303, 3.310 (2017). 2. The criteria for a rating in excess of 10 percent for chondromalacia of the right knee with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107(b) (2014); 38 C.F.R. §§ 4.2, 4.7, 4.20, 4.40, 4.45, 4.71a, Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2017). 3. The criteria for a rating in excess of 10 percent for chondromalacia of the left knee with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107(b) (2014); 38 C.F.R. §§ 4.2, 4.7, 4.20, 4.40, 4.45, 4.71a, Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a) (2014); C.F.R. § 3.159(b)(1) (2017). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a March 2011 letter, the Veteran was provided with notice prior to the initial consideration of his claim. The duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have previously been received. VA treatment records have been obtained, and the Veteran has not identified any outstanding private medical treatment. These issues have been twice remanded in order to provide the Veteran new examinations and obtain additional opinions. The requested opinions have been provided, with the exception of an explanation as to why the January 2015 VA examination indicates that the Veteran has both range of motion findings for his knees and a diagnosis of ankylosis. However, the Board notes that the examinations dated subsequent to January 2015 all state that the Veteran does not have ankylosis of either knee. This information is sufficient to allow the Board to evaluate the claim, and the Board finds that there has been substantial compliance with its remand requests. As there is no indication of any outstanding evidence relevant to these matters, the Board will proceed with adjudication of the claims. Service Connection The Veteran contends that he has developed disabilities of both ankles secondary to his service connected knee disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curium, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007) (overruled on other grounds), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159 (a)(2) (2017). (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A review of the Veteran's service treatment records is negative for complaints or treatment pertaining to his ankles. The November 1976 discharge examination states that the Veteran's lower extremities and feet were normal. 6/11/14 STR-Medical, p. 11. The evidence includes the report of a VA examination conducted in August 2010. An X-ray study of the bilateral ankles revealed mild degenerative arthritis, primarily within the tibiotalar joints. Following the examination, the assessment was mild bilateral ankle arthritis. The examiner opined it was not likely that the Veteran's claimed ankle disabilities were secondary to his service connected knee injuries. The rationale was that the knee injury occurred in 1979 but the ankle complaints did not begin until 2000. This examiner did not address the question of aggravation. 8/21/10 VA Examination, p. 3. The Veteran underwent another examination in July 2014. The examination report states that he had been diagnosed with bilateral ankle sprains in service. The examiner found only that the Veteran had a history of bilateral ankle sprains in service, without evidence of a current disability. X-ray studies conducted at that time were also read as normal. At the conclusion of the examination and record review, the VA examiner opined that it was less likely than not that the Veteran's claimed ankle disabilities were incurred due to service. The examiner noted that ankle sprains are common and most people recover. The basis for his opinion was that he found no disability in the Veteran on examination or imaging. This examiner did not address secondary service connection, to include the question of aggravation. 7/12/14 C&P Exam, pp. 7-13. Two new examination reports have been received since the February 2017 remand. In a June 2017 Medical Opinion Questionnaire completed by an internist, the Veteran's in-service knee injuries were discussed. The Veteran was noted with ankle problems following the knee injuries, which had been progressive with bilateral degenerative joint disease. The examiner indicated that it was at least as likely as not that the Veteran's ankle disabilities were proximately due to or the result of the service connected knee disabilities. The examiner reasoned that the Veteran's service connected knee disabilities were related to physical training and falls that could have affected the ankles at that time, and were likely worsened with favoring one side of the joints over the other. The August 2010 findings of mild ankle arthritis were deemed accurate, and the examiner added that recent radiological findings showed degenerative joint disease of both ankle joints. Therefore, the claimed conditions were at least as likely as not due to the service connected conditions. 6/5/17 C&P Exam#5, p. 2. In contrast, a second June 2017 VA Medical Opinion Questionnaire completed by a doctor specializing in family medicine found that the Veteran did not have a current diagnosis of an ankle disability, and that there was no evidence of arthritis on June 2017 X-ray studies. 6/28/17 C&P Examination #4, p. 2. In a separate form, this examiner states that there is no objective evidence of an ankle disorder, and thus there was no rationale to relate the Veteran's ankle complaints to his knee problems. The examiner added that the reason for the discrepancy in the August 2010 X-ray findings of mild bilateral ankle arthritis and the current X-ray findings of no arthritis was likely due to the opinion of the individual radiologist who interpreted the films. 6/28/17 C&P Exam#1, p. 3. The Board finds that the evidence both for and against service connection is evenly balanced, and that the benefit of the doubt should be extended to the Veteran. First, the Board finds that the criterion that the Veteran has a diagnosis of a current disability has been met. The Board notes that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even if the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). The August 2010 VA records include the diagnosis of mild bilateral arthritis. The June 2017 internist also found that the Veteran has degenerative joint disease in both ankles. This is weighed against the normal findings on the July 2014 examination as well as the June 2017 opinion by the family medicine specialist that the Veteran does not have a current disability. However, the Board notes that the June 2017 examiner explained the varying X-ray findings of arthritis as being likely due to the opinion of the individual radiologist who interpreted the films. In other words, there is no indication that the images on the films changed or were in error. Instead, the images were the same, and doctors were reaching different conclusions based on these images. The Board views this as a case where it is as likely as not that the Veteran has arthritis of the ankles, and as such the question of the existence of a current disability must be resolved in favor of the Veteran. Similarly, there are competing opinions as to whether or not the current ankle disabilities are due to the Veteran's service connected knee disabilities. The July 2014 VA opinion and the June 2017 opinion by the family practitioner were both based on the premise that the Veteran does not have a current disability. As the Board has determined he does have a disability, these opinions are not probative as to the question of nexus. The August 2010 VA examiner found that the Veteran has mild bilateral ankle arthritis, but that it was not likely secondary to his service connected knee injuries. The only rationale offered was that the ankle disabilities began many years after the knee disabilities. In contrast, the June 2017 opinions from the internist related the current ankle disabilities to the knee disabilities, and offered rationale including that the ankle disabilities may have been due to favoring one side over the other. Both opinions were based on a review of the Veteran's file. The Board finds that they are equally persuasive. Once again the benefit of the doubt must be resolved in favor of the Veteran. Therefore, as there is evidence of a current disability of the ankles, and evidence of a causal relationship between the Veteran's service connected knee disabilities and the ankle disabilities, the benefit of the doubt is again resolved in favor of the Veteran. The Board concludes that as the Veteran has current disabilities of the ankles, and as these ankle disabilities were the proximate result of his service connected knee disabilities, the criteria for service connection for the bilateral ankle disabilities have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310. Increased Ratings The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board will consider whether or not a staged rating is appropriate for the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The record shows that entitlement to service connection for chondromalacia of the right knee and chondromalacia of the left knee was established in a September 1977 rating decision. A 10 percent rating was assigned to each of these disabilities under the rating criteria for other impairment of the knee. Initially, the Board notes that although the rating decision code sheets show that the diagnosis of the Veteran's knee disabilities over the years has remained chondromalacia, various rating codes have been used to evaluate this disability. At different times, the 10 percent ratings have been assigned under the rating code for other impairment of the knee due to recurrent subluxation or lateral instability, the rating code for traumatic arthritis, the rating code for limitation of flexion, and currently under the rating code for limitation of extension. See 7/10/17 Rating Decision - Codesheet, p. 1. The Board observes that chondromalacia does not have a listing in the rating criteria. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board will exercise great care in selecting which rating code is the most appropriate to the Veteran's disabilities, as well as considering which of these will result in the most favorable rating. 38 C.F.R. § 4.27. The rating criteria for other impairment of the knee due to recurrent subluxation or lateral instability provide for a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, Code 5257. Traumatic arthritis is evaluated under the criteria for degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Flexion of the knee that is limited to 15 degrees is evaluated as 30 percent disabling. Limitation of flexion to 30 degrees merits a 20 percent evaluation. Limitation of flexion to 45 degrees warrants a 10 percent evaluation. Limitation of flexion to 60 degrees is evaluated as zero percent disabling. 38 C.F.R. § 4.71a, Code 5260. The rating code for limitation of extension of the knee provides that limitation of extension to 45 degrees is evaluated as 50 percent disabling. Limitation of extension to 30 degrees receives a 40 percent evaluation. 20 degrees of extension is evaluated as 30 percent disabling. Limitation of extension to 15 degrees merits a 20 percent evaluation. Limitation of extension to 10 degrees is evaluated as 10 percent disabling. Limitation of extension to 5 degrees is evaluated as 0 percent disabling. 38 C.F.R. § 4.71a, Code 5261. The Board will consider whether or not separate evaluations based on limitation of both flexion and extension are appropriate. See VAOPGCPREC 9-04. Consideration will also be given as to whether or not separate ratings based on instability and limitation of motion are warranted. See VAOPGCPREC 9-98. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. In this case, the evidence includes a February 2010 VA examination of the Veteran's joints. The Veteran reported daily constant pain in his knees but denied flare-ups. The left knee had range of motion from zero to 100 degrees, with pain from 60 to 100 degrees. The right knee had range of motion from zero to 120 degrees, with pain from 100 to 120 degrees. There was no change in the range of motion after repetitive movement, and both knees were stable to varus and valgus stress. The examiner added it was possible that pain could further limit the Veteran's functioning especially after being on his feet all day, but to attempt to express this in terms of limitation of motion was not feasible as it could not be determined with any degree of medical certainty. 2/20/10 VA Examination, p. 1. A February 2011 VA examination noted complaints of daily flare-ups. Objectively, the range of motion of both knees was from 5 to 80 degrees. There was pain throughout the entire arc if the Veteran flexed his knees further than 80 degrees. Repetitive motion resulted in pain. Both knees were stable, with moderate degenerative joint disease on X-ray study. 2/5/11 VA Examination, p. 1. February 2011 VA treatment records include additional knee X-rays which show that the osseous structures, cartilage space, and soft tissues of both knees were normal. 3/4/11 Medical Treatment Record - Government Facility, p. 2. Additional VA treatment records dated October 2012 show that the Veteran was seen with complaints of left knee pain. Range of motion was from zero to 110 degrees with discomfort verbalized. There was positive patellar grind, but no instability. 3/24/17 Capri, p. 940. The Veteran underwent another VA examination of his legs in July 2014. At that time, he reported pain with ambulation and with prlonged standing. He denied flare-ups. The right knee had 95 degrees of flexion, with pain at that point. There was no limitation or pain on extension. The left knee had 80 degrees of flexion before experiencing pain. There was no limitation or pain on extension. The Veteran was able to perform repetitive use testing, but this did not result in any additional limitation in the range of motion. Both knees were normal on stability testing. X-ray studies of the knees were obtained, but these did not show degenerative or traumatic arthritis. The Veteran did have bilateral patellar grinding. The diagnosis was patellofemoral pain syndrome bilaterally. 7/12/14 C&P Exam, p. 1. At a January 2015 VA examination, both knees had range of motion from 10 degrees to 80 degrees. Pain was noted on examination, which resulted in the functional loss. The Veteran was able to perform repetitive use testing, but this did not result in additional functional loss or loss of range of motion of either knee. The examination was reportedly conducted following repetitive use over time, but pain, weakness, fatigability, or incoordination did not significantly limit functional ability. He did not report flare-ups that impacted the function of his knees. However, the Veteran said that he was unable to walk without a walker due to constant pain. The examiner said that the use of the walker was to prevent a fall. The examiner added that both knees had ankylosis in flexion between 10 and 20 degrees. There was no recurrent subluxation. Stability testing was not performed. The Veteran was said to be severely limited in his ability to ambulate or stand for sustained periods of time. 1/17/15 C&P Exam, p. 1. On a June 2017 VA questionnaire for knee conditions, the doctor found that the range of motion of both knees was from 5 to 135 degrees. The Veteran did not report any functional loss or impairment with repeated use over time. He was unable to perform repetitive use testing due to pain, but the examiner stated that the knees were not limited due to De Luca factors. The Veteran did not have ankylosis. There was no instability of either joint, and no history of recurrent subluxation. The examination was not conducted during a flare-up, and the examination was neither consistent nor inconsistent with the Veteran's statements regarding flare-ups, but there were no significant limits to functional ability due to pain, weakness, fatigability or incoordination during flare-ups. The examiner added that there was evidence of pain on passive range of motion testing of the knees, and with non-weight bearing testing, but the range of motion on this testing was not provided. 6/5/2017 C&P Exam, p. 1. On another June 2017 VA questionnaire for knee conditions, a second doctor found that the right knee had range of motion from zero to 110 degrees on both active and passive motion. The left knee had range of motion from zero to 90 degrees on both active and passive motion. There was pain on both extension and flexion, but it did not result in functional loss. There were no additional limitations following repetitive use. The examination was not performed after repetitive use over time or during a flare-up, and the examiner was unable to state without speculation whether or not pain, weakness, fatigability or incoordination would result in significantly limited functional ability under these circumstances. The knees were stable on testing, there was no subluxation, and there was no ankylosis. Muscle strength was 5/5 bilaterally. The Veteran did not have any condition of the meniscus for either knee. He reportedly used a cane most of the time, but also used a walker on occasion. X-ray studies confirmed bilateral arthritis. There was evidence of pain with weight bearing, but no objective evidence of pain on non-weight bearing. The examiner described the functional impact of the Veteran's disabilities as being unable to kneel or squat, or to walk for more than short distances, such as 100 feet or so with his walker. 6/28/17 C&P Exam, p. 1. The Board finds that entitlement to a rating in excess of 10 percent is not shown for either knee. A continuation of the current 10 percent rating under the rating criteria for limitation of extension is appropriate for both knees. The evidence shows that during the period on appeal, extension was reportedly limited to 10 degrees for each knee at the January 2015 VA examination. This warrants a 10 percent rating under the rating criteria for limitation of extension. There is no evidence to show that extension has been limited more than 10 degrees for either knee for any portion of the period on appeal on either active or passive testing. Repetitive testing did not result in limitation in excess of 10 degrees on any examination due to pain, weakness, incoordination or fatigability. None of the examinations were conducted during flare-ups, but the examination reports state the Veteran did not describe additional limitation during flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5261. Entitlement to a rating in excess of 10 percent under the rating criteria for limitation of flexion is not shown for either knee. This would require limitation of flexion to 30 degrees or more, but evidence of such limitation is not shown on either active or passive testing, even after consideration for additional limitation following repetitive use or flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5260. The Board has considered whether or not entitlement to separate ratings for limitation of flexion and extension can be assigned. This is appropriate if a particular knee disability causes both compensable limitation of extension and compensable limitation of flexion of the same joint. VAOPGCPREC 9-04. The Board finds that separate evaluations are not warranted. Even after consideration for additional limitations due to repetitive use or flare-ups, neither of the Veteran's knees have had flexion limited to the 45 degrees necessary for a 10 percent rating for any portion of the appeal period. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Code 5260. The Board has also considered entitlement to an increased rating under the criteria for other impairment of the knee due to recurrent subluxation or lateral instability. However, in spite of repeated testing throughout the course of this appeal, none of the examinations have shown either subluxation or instability for either knee, which makes the use of this rating code inappropriate. It also precludes the assignment of separate evaluations based on limitation of motion and instability. 38 C.F.R. § 4.71a, Code 5257; VAOPGCPREC 9-98. Finally, the Board has considered the applicability of other rating codes for the knee and leg but find they do not apply. Of particular note is the rating code for ankylosis. The January 2015 examination states that both knees had ankylosis in flexion between 10 and 20 degrees. As noted in the February 2017 remand, the report of ankylosis seemingly contradicts the finding on that same examination that each knee had a range of motion from 10 to 80 degrees, as ankylosis generally refers to the immobility or consolidation of a joint. The reports of both subsequent examinations state that the Veteran does not have ankylosis of either knee, which makes it more likely than not that the January 2015 examination report was in error. It follows that the use of the rating code for ankylosis of the knee is not appropriate. 38 C.F.R. § 4.71a, Code 5256. As there is no evidence of dislocation of the cartilage, impairment of the tibia and fibula, or genu recurvatum, the use of these rating criteria is also not supported. 38 C.F.R. § 4.71a, Code 5258, 5259, 5262, 5263. The Board concludes that there is no basis for a rating in excess of 10 percent for either knee. ORDER Entitlement to service connection for a bilateral ankle disability as secondary to service-connected chondromalacia of the bilateral knees is granted. Entitlement to an increased rating for chondromalacia of the right knee with degenerative joint disease, currently evaluated as 10 percent disabling. Entitlement to an increased rating for chondromalacia of the left knee with degenerative joint disease, currently evaluated as 10 percent disabling ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs