Citation Nr: 18145967 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-32 915 DATE: October 30, 2018 ORDER A disability rating of 20 percent, but not higher, for degenerative joint disease (DJD) of the right foot is granted. Entitlement to a disability rating in excess of 30 percent for service-connected right knee patellofemoral syndrome is denied. Entitlement to a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis is denied. FINDINGS OF FACT 1. The Veteran’s service-connected DJD of the right foot manifests with moderately severe pain and metatarsalgia. This most closely correlates to a 20 percent disability rating. 2. The Veteran’s service-connected right knee patellofemoral syndrome manifests as extension limited to 20-29 degrees and painful motion. This most closely correlates to a 30 percent disability rating. 3. The Veteran’s service-connected right ankle Achilles tendonitis manifests as marked limitation of motion of the ankle without ankylosis. This most closely correlates to a 20 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 20 percent for service-connected DJD of the right foot have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5284 (2017). 2. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5261 (2017). 3. The criteria for entitlement to a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.7, 4.21, 4.71a, Diagnostic Code (DC) 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1979 to January 1982. This matter before the Board of Veterans’ Appeals (Board) is on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina (Agency of Original Jurisdiction (AOJ)). The Veteran initially requested a videoconference hearing on his claim; however, he subsequently withdrew his hearing request in a February 2017 correspondence. As such, the Board will proceed and adjudicate his claim without a hearing. This matter was previously before the Board in October 2017. The Board remanded on the issues of entitlement to higher disability ratings for the Veteran’s service-connected right knee, right ankle, and right foot to afford the Veteran the opportunity to present for new VA examinations. The Board also instructed the AOJ in its remand directives to obtain any additional medical records that may be missing from the Veteran’s claim file. A review of the file reflects that new examinations were completed and additional medical records were obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). In cases involving joints rated on the basis of limitation of motion, it must be considered whether an additional rating should be given for functional loss due to pain under 38 C.F.R. § 4.40 (including pain on use or during flare-ups) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. See De Luca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to a disability rating in excess of 10 percent for service-connected DJD of the right foot The Veteran contends that his right foot condition, rated under DC 5284, warrants an increased disability rating. DC 5284 provides rating criteria for foot injuries. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. The Veteran filed his initial claim for a right foot condition in March 2010. Thereafter, his wife provided a lay statement that said her husband wakes up two hours before he has to leave for work to “work through” the popping and locking of his feet. The Veteran underwent a VA examination in July 2010, where the examiner recorded that his right foot condition, diagnosed as a right foot strain with pes planus, has existed since 1980 when he broke his ankle. The Veteran reported he was previously diagnosed with worn cartilage and a possible fracture. The examiner noted that the Veteran reports pain in the entire ankle, ball of foot, heel and toe that occurs constantly, with pain traveling from his foot to his knees. The pain is burning, aching, sharp, and cramping. He also experiences numbness in his toes. At rest and when walking, he has pain, weakness, stiffness, and swelling. He endorsed being unable to run, walk or stand for a prolonged period of time, jump, bend, kneel, or squat. Examination of the right foot revealed slight tenderness and pes planus. Dorsiflexion of the toes on the right foot produced pain in some of the toes. Subjective factors included pain with use and tenderness, while objective factors included tenderness and decreased range of motion. Imaging conducted in conjunction with the examination revealed no abnormalities with the Veteran’s right foot aside from mild degenerative change of the 1st metatarsophalangeal joint. The AOJ granted service connection and assigned a noncompensable rating for the Veteran’s DJD of the right foot in a December 2010 rating decision. The Veteran’s representative at the time filed a timely Notice of Disagreement in September 2011 and his appeal was perfected in November 2013. In the interim, the Veteran provided a number of lay statements; medical treatment records, both private and VA, were also associated with the record, documenting his condition. A physician’s assistant provided a letter stating the Veteran has chronic problems with his feet and ankle, and these problems have in turn contributed to other disabilities. The Veteran reports walking with a limp and popping noises in his toes and knees. Two other letters from friends also made note of the Veteran’s limp and the pain in his feet. Other statements by the Veteran in correspondence and medical records reflect that he participated in pain management due to his disabilities, and the Veteran provided Social Security Administration (SSA) records that note December 31, 2013 as his date of disability. Another VA examination was conducted in August 2011 for the Veteran’s right foot. The Veteran reported constant pain in the foot and ankle that radiates up his leg and into his hips. He describes the pain as burning, aching, sharp, and cramping. The pain comes spontaneously and is exacerbated by physical activity and stress, relieved only by rest. He has pain, weakness, stiffness, and swelling at rest; when walking or standing, he has pain, weakness, stiffness, swelling, and fatigue. The Veteran reported functional impairment in the form of limited mobility; he cannot stand for any length of time and walking is painful. Examination of the right foot revealed slight tenderness, but dorsiflexion of the toes on the right foot did not produce pain. The Veteran underwent another VA examination in January 2015 for DJD of the right foot. At that time, the examiner noted the Veteran had metatarsalgia and hallux rigidus in addition to DJD. He experiences flare ups that are very painful and result in limited range of motion as well as pain with walking and standing. His hallus rigidus manifests with mild or moderate symptoms. The Board remanded on the issue of entitlement to an increased disability rating for DJD of the right foot in its October 2017 decision, requesting additional medical records and instructing a new examination to take place that complies with the decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The additional medical records added to the file include a number of treatment notes documenting the Veteran’s foot pain; one note includes that his foot pain is “moderate to severe.” The examination conducted in March 2018 recorded that the Veteran has DJD and metatarsalgia, but not hallux rigidus. He has functional impairment associated with his foot; he is unable to stand or walk. The examiner noted pain on weight bearing and non-weight bearing. Following this examination, the AOJ increased the Veteran’s disability rating for DJD of the right foot in a May 2018 rating decision to 10 percent under DC 5284 based on pain and metatarsalgia. In reviewing the AOJ’s decision, the Board finds that the Veteran’s symptoms are most closely contemplated by a 20 percent disability rating. Notably, the Veteran’s recent medical records describe his foot pain as “moderate to severe.” Furthermore, the Veteran contends that he is unable to walk and stand, and suggested that his disabilities resulted in termination from his prior place of employment. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a 20 percent disability rating for DJD of the right foot. 2. Entitlement to a disability rating in excess of 30 percent for service-connected right knee patellofemoral syndrome The Veteran contends that his right knee condition warrants an increased disability rating. Prior to March 26, 2018, the Veteran’s right knee disability was rated under DC 5260, covering limitation of flexion of the leg. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. DC 5260 provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, DC 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. Id. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees. Id. However, the AOJ’s May 2018 Rating Decision and Subsequent Statement of the Case (SSOC) found that the Veteran’s right knee condition should be evaluated under DC 5261 instead of DC 5260. DC 5261 provides a noncompensable rating when leg extension is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5261. A 10 percent rating is warranted for leg extension limited to 10 degrees. Id. A 20 percent evaluation is for leg extension limited to 15 degrees. Id. A 30 percent evaluation is for leg extension limited to 20 degrees. Id. A 40 percent evaluation is for leg extension limited to 30 degrees. Id. A 50 percent evaluation is for leg extension limited to 45 degrees. Id. Based on the medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 30 percent for the Veteran’s right knee disability is warranted. The Veteran filed his initial claim for a right knee condition in March 2010. Thereafter, his wife provided a lay statement and, while not directly citing his knee disability, indicated that the combination of the Veteran’s medical conditions takes away from his quality of life. The Veteran underwent a VA examination in July 2010, where the examiner recorded that his right knee condition, diagnosed as an ankle strain, has existed since 1980 when he broke his ankle and subsequently added stress to his knee. He noted that the Veteran experiences the following symptoms: weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, tenderness, and pain. He reportedly experiences flare ups all day, with high levels of severity that prevent him from walking, standing, or crouching. The Veteran limps all the time due to constant pain and he tends to favor his right leg, causing problems with his left leg and lower back. The examiner recorded the Veteran’s right knee flexion as 110 degrees with noticeable pain at 90 degrees. Imaging conducted in conjunction with the examination revealed no abnormalities with the Veteran’s right knee. The AOJ granted service connection and assigned a 10 percent disability rating for the Veteran’s right knee patellofemoral syndrome in a December 2010 rating decision based on evidence of limitation of motion as a result of pain with motion. The Veteran’s representative at the time filed a timely Notice of Disagreement in September 2011 and his appeal was perfected in November 2013. In the interim, the Veteran provided a number of lay statements; medical treatment records, both private and VA, were also associated with the record, documenting his condition. He states that walking with a limp due to another service-connected disability has led to damage to his knees – something that was also referenced in a lay statement provided by his wife. Two other letters from friends also noted the Veteran’s physical condition, including his knee, is deteriorating. Other statements by the Veteran in correspondence and medical records reflect that he participated in pain management due to his disabilities, and the Veteran provided SSA records that note December 31, 2013 as his date of disability. The Veteran underwent another VA examination in January 2015 for his right knee patellofemoral syndrome. The examiner noted the Veteran experiences flare ups that are very painful and result in limping and limited range of motion. He had flexion to 90 degrees and no limitation of extension. The examiner noted there were contributing factors of pain, weakness, fatigability, and/or incoordination and additional limitation of functional ability of the knee joint during flare ups or repeated use over time, estimating the degree of range of motion loss during pain on use or flare ups to be approximately 10 degrees in flexion. The Board remanded on the issue of entitlement to an increased disability rating for right knee patellofemoral syndrome in its October 2017 decision, requesting additional medical records and instructing a new examination to take place that complies with Correia. The additional medical records added to the file make note of the Veteran’s complaints of right knee pain. The examination conducted in March 2018 recorded that the Veteran has functional impairment associated with his knees; he is unable to kneel, squat, stand for long periods of time, or walk. He had flexion from 20 to 75 degrees, and extension from 75 to 20 degrees. The examiner noted pain on weight bearing, and objective evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. He did not indicate that pain, fatigue, weakness, lack of endurance, or incoordination caused functional loss during flare ups or repetitive use. Following this examination, the AOJ increased the Veteran’s disability rating for right knee patellofemoral syndrome in a May 2018 rating decision from 10 percent under DC 5260 to 30 percent under DC 5261 based on limitation of extension to 20-29 degrees. In reviewing the AOJ’s decision, the Board finds that the Veteran’s symptoms are most closely contemplated by the 30 percent disability rating provided. The Veteran does not have ankylosis of the knee, thus preventing a higher rating under DC 5256. Additionally, his extension is not limited to 30 or 45 degrees, making him ineligible for a 40 or 50 percent disability rating under DC 5261, respectively. As such, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for right knee patellofemoral syndrome, nor should an additional rating be given for functional loss due to pain, weakness, or incoordination. 38 C.F.R. § 4.40; De Luca v. Brown, 8 Vet. App. 202 (1995). 3. Entitlement to a disability rating in excess of 20 percent for service-connected right ankle Achilles tendonitis The Veteran contends that his right ankle condition, rated under DC 5271, warrants an increased disability rating. DC 5271, pertaining to limited motion of the ankle, mandates that a 10 percent rating is provided where there is “moderate” limitation of motion and a 20 percent rating requires “marked” limitation of motion. 38 C.F.R. § 4.71a. Twenty percent is the highest rating available under DC 5271. See id. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. The Veteran filed his initial claim for a right ankle condition in March 2010. Thereafter, his wife provided a lay statement and indicated that the combination of the Veteran’s medical conditions, including the popping and locking of his ankles, takes away from his quality of life. The Veteran underwent a VA examination in July 2010, where the examiner recorded that his right ankle condition, diagnosed as an ankle strain, has existed since 1980 when he broke his ankle. He noted that the Veteran experiences the following symptoms: weakness, stiffness, swelling, heat, giving way, lack of endurance, locking, tenderness, and pain. He reportedly experiences flare ups all day, with high levels of severity that prevent him from walking, standing, or crouching. The Veteran limps all the time due to constant pain and he tends to favor his right leg, causing problems with his left leg and lower back. The examiner recorded the Veteran’s right ankle dorsiflexion as 20 degrees with noticeable pain at 20 degrees. Plantar flexion range of motion of the right ankle was limited to 30 degrees. Imaging conducted in conjunction with the examination revealed no abnormalities with the Veteran’s right ankle. The AOJ granted service connection and assigned a 10 percent disability rating for the Veteran’s right ankle Achilles tendonitis in a December 2010 rating decision based on evidence of limitation of motion as a result of pain with motion. The Veteran’s representative at the time filed a timely Notice of Disagreement in September 2011 and his appeal was perfected in November 2013. In the interim, the Veteran provided a number of lay statements; medical treatment records, both private and VA, were also associated with the record, documenting his condition. A physician’s assistant provided a letter stating the Veteran has chronic problems with his feet and ankle, and these problems have in turn contributed to other disabilities. The Veteran reports walking with a limp and popping noises in his toes and knees. Two other letters from friends also made note of the Veteran’s limp. Other statements by the Veteran in correspondence and medical records reflect that he participated in pain management due to his disabilities, and the Veteran provided SSA records that note December 31, 2013 as his date of disability. Another physician’s assistant letter provided that the Veteran’s right ankle fracture is the likely source of his lower extremity arthritis and his gait abnormality is the likely cause of his back problems. Another VA examination was conducted in August 2011 for the Veteran’s right ankle. He noted that the Veteran experiences the following symptoms: weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatiguability, tenderness, and pain. He reportedly experiences flare ups twice per day that last for approximately 12 hours, with high levels of severity that prevent him from walking or standing. The Veteran reported limited mobility due to pain, swelling, popping, weakness, and walking with a limp. The examiner recorded the Veteran’s right ankle dorsiflexion as 20 degrees with noticeable pain at 20 degrees. Plantar flexion range of motion of the right ankle was limited to 35 degrees with noticeable pain at 30 degrees. Imaging conducted in conjunction with the examination revealed no abnormalities with the Veteran’s right ankle. The Veteran underwent another VA examination in January 2015 for his right ankle Achilles tendonitis. The examiner noted the Veteran experiences flare ups that are very painful and result in limited range of motion. He had plantar flexion to 20 degrees and dorsiflexion/extension to 10 degrees; no ankylosis was noted. The examiner noted there were contributing factors of pain, weakness, fatigability, and/or incoordination and additional limitation of functional ability of the ankle joint during flare ups or repeated use over time, estimating the degree of range of motion loss during pain on use or flare ups to be approximately 10 degrees in flexion in both ankles. The Board remanded on the issue of entitlement to an increased disability rating for right ankle Achilles tendonitis in its October 2017 decision, requesting additional medical records and instructing a new examination to take place that complies with the decision in Correia. The additional medical records added to the file make note of the Veteran’s complaints of right ankle pain; one such note from February 2014 classifies the Veteran’s ankle arthritis as “major.” The examination conducted in March 2018 recorded that the Veteran has functional impairment associated with his ankle; he is unable to stand for long periods of time or walk. He had dorsiflexion to 5 degrees and plantar flexion to 10 degrees. The examiner noted pain on weight bearing, and objective evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing. No ankylosis was noted. He did not indicate that pain, fatigue, weakness, lack of endurance, or incoordination caused functional loss during flare ups or repetitive use. (Continued on the next page)   Following this examination, the AOJ increased the Veteran’s disability rating for right ankle Achilles tendonitis in a May 2018 rating decision from 10 percent under to 20 percent under DC 5271 based on marked limitation of motion of the ankle. In reviewing the AOJ’s decision, the Board finds that the Veteran’s symptoms are most closely contemplated by the 20 percent disability rating provided. The Veteran does not have ankylosis of the ankle, thus preventing a higher rating under DC 5270. Furthermore, a 20 percent rating pursuant to DC 5271 is the highest schedular evaluation allowed by law for limitation of motion of the ankle. As such, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for right ankle Achilles tendonitis, nor should an additional rating be given for functional loss due to pain, weakness, or incoordination. 38 C.F.R. § 4.40; De Luca v. Brown, 8 Vet. App. 202 (1995). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel