Citation Nr: 18152515 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 14-43 770 DATE: November 23, 2018 ORDER A rating in excess of 10 percent for right knee instability is denied. A rating of 10 percent for left knee instability is restored throughout the claim period. A rating in excess of 10 percent for left knee instability is denied. A separate rating of 20 percent is granted for right knee meniscal injury with frequent episodes of locking, pain, and swelling. A separate rating of 20 percent is granted for left knee meniscal injury with frequent episodes of locking, pain, and swelling. A rating in excess of 10 percent for a left ankle disability is denied. A rating in excess of 10 percent for a right ankle disability is denied. An initial compensable rating for right great toe degenerative arthritis is granted. An initial compensable rating for left great toe degenerative arthritis is granted. REMANDED The issues of entitlement to ratings higher than 10 percent for right and left knee limitation of motion associated with degenerative arthritis are remanded for additional development. VETERAN’S CONTENTIONS The Veteran contends that the ratings currently assigned for his right and left knee and ankle disabilities do not accurately reflect the severity of his disabilities. Specifically, he asserts that his knee pain is so severe that he uses medication constantly, and that he needs knee replacements. He also asserts that he experiences pain and limitation of motion in his ankles and great toes, and that the pain in his toes can be so severe that he is unable to walk. FINDINGS OF FACT 1. The Veteran’s right knee instability is manifested by no more than slight lateral instability. See VA Examinations dated June 2012, December 2015, March 2017. 2. The Veteran’s left knee instability has been manifested by no more than slight lateral instability throughout the claim period. See VA Examinations dated June 2012, December 2015, March 2017. 3. The Veteran’s right knee disability has been manifested by meniscal injury with frequent episodes of locking, pain, and swelling since June 13, 2012. See VA Examinations dated June 2012, December 2015, March 2017; Private Treatment Records dated September 2015, January 2018 (noting mild or moderate effusion of the right knee). 4. The Veteran’s left knee disability has been manifested by meniscal injury with frequent episodes of locking, pain, and swelling since June 13, 2012. See VA Examinations dated June 2012, December 2015, March 2017; Private Treatment Records dated September 2015, January 2018 (noting mild or moderate effusion of the right knee). 5. The Veteran’s right ankle disability has manifested in no more than moderate limitation of motion throughout the claim period. See VA Examinations dated June 2012, January 2018; July 2013 Private Treatment Record. 6. The Veteran’s left ankle disability has manifested in no more than moderate limitation of motion throughout the claim period. See VA Examinations dated June 2012, January 2018; July 2013 Private Treatment Record. 7. The Veteran’s right great toe degenerative arthritis has manifested in severe pain productive of functional impairment throughout the claim period. See VA Examinations dated June 2012, January 2018. 8. The Veteran’s left great toe degenerative arthritis has manifested in severe pain productive of functional impairment throughout the claim period. See VA Examinations dated June 2012, January 2018. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. The criteria for a rating of 10 percent for left knee instability have been met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a rating in excess of 10 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a separate rating of 20 percent for right knee meniscal injury with frequent episodes of locking, pain, and swelling are met from June 13, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 5. The criteria for a separate rating of 20 percent for left knee meniscal injury with frequent episodes of locking, pain, and swelling are met from June 13, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 6. The criteria for a rating in excess of 10 percent for a left ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 7. The criteria for a rating in excess of 10 percent for a right ankle disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5271. 8. The criteria for an initial compensable rating for right great toe degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 9. The criteria for an initial compensable rating for left great toe degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from January 1983 to January 2003. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Increased Ratings 1. Right and Left Knee Instability The Veteran’s right and left knees are currently rated as 10 and 0 percent disabling, respectively, for slight lateral instability under diagnostic code (DC) 5257. In the first place, the Board finds that the Veteran’s left knee disability has manifested in slight lateral instability throughout the claim period, and therefore a rating of 10 percent is warranted throughout that time. See March 2017 VA Examination (noting findings of normal left knee stability, but reflecting the Veteran’s reports of left knee stiffness, locking, giving out, and instability). Accordingly, a rating of 10 percent is restored for left knee instability throughout the claim period. Under DC 5257, a rating in excess of 10 percent requires moderate or severe recurrent dislocation or lateral instability. However, there is no evidence throughout the claim period of more than slight lateral instability. The Veteran has consistently reported symptoms of instability at VA examinations throughout the claim period, but VA examiners have noted either slight instability, or no instability at all. See VA Examinations dated June 2012, December 2015, March 2017. The Veteran is competent to describe his own symptoms, and the Board finds him credible. As noted above, his reports suffice to establish slight instability throughout the claim period. However, although the findings of VA medical examiners do not discredit the Veteran’s own reports, they contain no evidence of moderate or severe instability, and the December 2015 and March 2017 findings of no instability at all strongly suggest that what instability the Veteran does experience is no more than slight. Therefore, because there is no evidence throughout the claim period of more than slight lateral instability of the right and left knees, ratings in excess of 10 percent for right and left knee instability are not warranted. 2. Separate Ratings of 20 Percent for Right and Left Knee Meniscal Injuries As noted in the above findings of fact and conclusions of law, the Board finds that separate ratings of 20 percent are warranted since June 13, 2012 under DC 5258 for right and left knee meniscal injuries with frequent episodes of locking, pain, and swelling. A rating of 20 percent is the maximum, and only, rating available under DC 5258. A rating in excess of 20 percent for a knee disability can only be granted under another diagnostic code. The Veteran already has ratings of both knees under DCs 5257 and 5260, for instability and painful motion, respectively. As these ratings do not contemplate or compensate the Veteran for the locking and swelling he experiences, a separate rating under DC 5258 does not amount to pyramiding. See 38 C.F.R. § 4.14. There is no evidence throughout the claim period of ankylosis, limitation of extension to more than 15 degrees, impairment of the tibia and fibula, or genu recurvatum. DCs 5256, 5259, 5261, 5262, 5263. Therefore, the Board finds that no other diagnostic codes are applicable here. Accordingly, ratings in excess of 20 percent for right and left knee meniscal injuries are not warranted. 3. Ratings in Excess of 10 Percent for Right and Left Ankle Disabilities The Veteran’s bilateral ankle disabilities are currently rated as 10 percent disabling for painful motion under DC 5271. 38 C.F.R. § 4.59. A rating in excess of 10 percent under DC 5257 requires “marked” limitation of motion. Before January 2018, there is no evidence of any ankle limitation of motion, either right or left. See, e.g., June 2012 VA Examination, July 2013 Private Treatment Record. A January 2018 VA examination noted right plantar flexion and dorsiflexion limited to 25 and 15 degrees respectively, and left plantar flexion and dorsiflexion limited to 30 and 10 degrees. The ordinary limits of motion for plantar flexion and dorsiflexion are 45 and 20 degrees, respectively. 38 C.F.R. § 4.71, Plate II. The rating schedule does not specify what constitutes “marked” limitation of motion. In evaluating the Veteran’s ankle disabilities, the Board takes into consideration all the medical evidence and the entirety of the record, in order to establish a consistent disability picture. See 38 C.F.R. § 4.2. The January 2018 examiner noted that the Veteran’s ankle disabilities had stayed the same since their onset, and that they caused no functional impact. Taking together the evidence throughout the rest of the claim period of no limitation of motion, the January 2018 examiner’s note that the Veteran’s ankle disabilities had not changed, and the limitation of motion nevertheless recorded by that examiner, the Board finds that the Veteran’s bilateral ankle disability does manifest in limitation of motion, but that this limitation of motion is not “marked.” Therefore, ratings in excess of 10 percent for right and left ankle disabilities are not warranted. 4. Initial Compensable Ratings for Right and Left Great Toe Degenerative Arthritis The Veteran’s right and left great toe degenerative arthritis is currently rated as noncompensably disabling under DC 5284, for “other” injuries of the foot. Under DC 5284, a rating of 10 percent requires a “moderate” injury. As noted in the above findings of fact and conclusions of law, the Board finds that the Veteran’s bilateral toe disabilities warrant initial ratings of 10 percent for severe pain productive of functional impairment. Pain alone may constitute a disability as contemplated in VA’s guiding statutes, so long as the pain results in functional impairment. 38 U.S.C. § 1110; Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467, *18-28 (Fed. Cir. Apr. 3, 2018). The Veteran has consistently reported functional impairment, such as inability to walk, produced by his severe bilateral great toe pain throughout the claim period. See VA Examinations dated June 2013, January 2018. The Veteran is competent to describe his own symptoms, and the Board finds him credible. Therefore, ratings of 10 percent are warranted under DC 5284 for right and left great toe degenerative arthritis throughout the claim period. A rating in excess of 10 percent requires a moderately severe or severe injury of the foot. 38 C.F.R. § 4.71a, DC 5284. The Veteran has been afforded two VA examinations throughout the claim period evaluating his bilateral toe disabilities: in June 2013 and January 2018. Neither examiner noted any functional impact of the Veteran’s disability. The January 2018 examiner noted that the Veteran’s toes were asymptomatic, and recorded no pain on physical examination. Because there is no objective evidence of record of any functional limitation, the Board finds that the Veteran’s bilateral great toe disabilities do not constitute moderately severe or severe injuries. Accordingly, ratings in excess of 10 percent are not warranted. REASONS FOR REMAND 1. Increased Ratings for Right and Left Knee Degenerative Arthritis Are Remanded The Veteran has been afforded three VA examinations throughout the claim period evaluating his service-connected right and left knee degenerative arthritis: in June 2012, December 2015, and March 2017. VA joint examinations, including knee examinations, must include an opinion as to whether pain significantly limits functional ability on repeated use over time or during flare ups. 38 C.F.R. § 4.40; Sharp v. Shulkin, 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). If feasible, examiners must estimate any functional loss in terms of limitation of motion. Id. The Veteran reported flare ups of his bilateral knee disabilities at each of his VA examinations. However, the June 2012 examiner failed to include an opinion as to whether flare ups limited the Veteran’s functional ability, and although the latter two examiners did include such opinions, neither attempted to estimate functional loss in terms of limitation of motion. Therefore, a remand is necessary to provide the Veteran with an adequate VA examination and opinion as to whether pain causes him significant functional impairment on repeated use over time and during flare ups. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA knee examination to evaluate his right and left knee degenerative arthritis. In particular, the examiner should render an opinion as to whether pain significantly limits the Veteran’s functional ability on repeated use of his knees over time, and during flare ups of his degenerative arthritis. If feasible, the examiner should estimate any functional loss in terms of limitation of motion. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel