Citation Nr: 18153680 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 12-16 286 DATE: November 29, 2018 ORDER Entitlement to an evaluation in excess of 10 percent prior to October 6, 2010, for service-connected right ankle disability is denied. Entitlement to an evaluation in excess of 10 percent prior to January 21, 2015, for service-connected left knee limitation of motion is denied. Entitlement to a separate 20 percent rating prior to October 26, 2011, for moderate left knee recurrent subluxation is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a separate 30 percent rating from October 26, 2011, to January 20, 2015, for severe left knee recurrent subluxation is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 30 percent since January 21, 2015 (exclusive of temporary 100 percent evaluations assigned from October 28, 2010 to November 30, 2010), for service-connected left knee disability is denied. Entitlement to an evaluation in excess of 30 percent since May 1, 2017, for service-connected left knee disability is denied. Entitlement to an evaluation in excess of 20 percent for left ankle disability on an extraschedular basis is denied. FINDINGS OF FACT 1. At no time during the appeal period prior to October 6, 2010, was the Veteran’s service-connected right ankle disability manifested by malunion of the tibia and fibula with moderate ankle disability, ankylosis, marked limited motion of ankle, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, malunion of os calcis or astragalus with marked deformity, or astragalectomy. 2. At no time during the appeal period prior to January 21, 2015, (exclusive of the period from October 28, 2010 to November 30, 2010), was the Veteran’s service-connected left knee disability manifested by ankylosis of the knee; dislocated semilunar cartilage; flexion of the leg limited to 45 degrees; extension of the leg limited to 20 degrees; or nonunion of the tibia and fibula with loose motion requiring a brace or malunion of the tibia and fibula with ankle disability. 3. Prior to October 26, 2011, the Veteran’s left knee disability was manifested by moderate recurrent subluxation 4. From October 26, 2011, to January 20, 2015, the Veteran’s left knee disability was manifested by severe recurrent subluxation. 5. At no time during the appeal period from January 21, 2015, to February 28, 2016, was the Veteran’s service-connected left knee disability been manifested by ankylosis of the knee; extension of the leg limited to at least 30 degrees; or nonunion of the tibia and fibula with loose motion requiring a brace. 6. At no time during the appeal period since May 1, 2017, has the Veteran’s service-connected left knee disability been manifested by severe painful motion or weakness; ankylosis of the knee; extension of the leg limited to at least 30 degrees; or nonunion of the tibia and fibula with loose motion requiring a brace. 7. The symptomatology and manifestations caused by the Veteran’s service-connected left ankle disability are not shown to present an exceptional or unusual disability picture productive of marked interference with employment or frequent periods of hospitalization. 8. The symptomatology and manifestations caused by the Veteran’s service-connected right ankle disability are not shown to present an exceptional or unusual disability picture productive of marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. For the period prior to October 6, 2010, the schedular criteria for a rating in excess of 10 percent for the Veteran’s right ankle impairment were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 2. For the period prior to January 21, 2015, (exclusive of the period from October 28, 2010 to November 30, 2010), the criteria for a rating in excess of 10 percent for the Veteran’s left knee disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5261. 3. Prior to October 26, 2011, the criteria for a separate 20 percent rating based on moderate recurrent subluxation were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, Diagnostic Code 5257. 4. From October 26, 2011, to January 20, 2015, the criteria for a separate 30 percent rating based on severe recurrent subluxation were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, Diagnostic Code 5257. 5. For the period from January 21, 2015, to February 28, 2016, the criteria for a rating in excess of 30 percent for the Veteran’s left knee disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5261. 6. For the period since May 1, 2017, the criteria for a rating in excess of 30 percent for the Veteran’s left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055. 7. The criteria for an extraschedular evaluation for service-connected left ankle disability, currently rated as 20 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321 (b)(1). 8. The criteria for an extraschedular evaluation for service-connected right ankle disability, currently rated as 20 percent disabling since October 6, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.321 (b)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1980 to September 1992. The issue of entitlement to an evaluation in excess of 10 percent prior to October 6, 2010, for right ankle impairment comes back before the Board on Remand from the United States Court of Appeals for Veterans Claims (Court) regarding a Board decision rendered in April 2017. In the Joint Motion for Partial Remand, the parties (the Veteran and the Secretary of Veterans Affairs) agreed that the Board failed to address whether the functional loss the Veteran experienced in his service-connected right ankle disability, both regularly and during flare-ups, demonstrated a level of impairment commensurate with a higher disability rating. The remaining issues on appeal are before the Board following a Board Remand in April 2017. In May 2015, the Veteran testified at a Travel Board hearing. A transcript of that hearing is included in the claims file. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Entitlement to a schedular evaluation in excess of 10 percent prior to October 6, 2010, for right ankle impairment The Veteran’s service-connected right ankle disability has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271, for moderate limited motion of the ankle. Musculoskeletal disabilities of the ankle are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274 -- Diagnostic Code 5270 (ankylosis of the ankle); Diagnostic Code 5271 (limited motion of the ankle); Diagnostic Code 5272 (ankylosis of the subastragalar or tarsal joint); Diagnostic Code 5273 (malunion of the os calcis or astragalus). Also for consideration is Diagnostic Code 5262 (malunion of the tibia and fibula with ankle disability). In order for an evaluation higher than the assigned 10 percent rating to be warranted for the right ankle prior to October 6, 2010, there must be malunion of the tibia and fibula with moderate ankle disability, ankylosis of the ankle, marked limited motion of ankle, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, malunion of os calcis or astragalus with marked deformity, or astragalectomy. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5270, 5271, 5272, 5273, and 5274. Normal range of motion for the ankle is from 0 to 20 degrees dorsiflexion and from 0 to 45 degrees plantar flexion. 38 C.F.R. § 4.71, Plate II. The words “moderate” and “marked” are not defined in the VA Rating Schedule. 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 (2015). By definition, ankylosis contemplates a total absence of joint mobility. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint,” Stedman’s Medical Dictionary 87 (25th ed. 1990)). VA treatments records indicate that the Veteran was seen by his primary care provider in March 2009, November 2009, January 2010, but had no complaints regarding his right ankle; and on physical examination, there was no lower extremity pain. The Veteran was seen by his primary care provider on May 7, 2010, at which time physical examination elicited bilateral soft tissue ankle pain. X-rays were normal. On May 12, 2010, the Veteran was seen for ankle pain by his primary care provider; he had obtained inserts for his shoes. The Veteran reported no pain in his right ankle. On May 15, 2010, the Veteran presented to the Emergency Department with complaints of, inter alia, left ankle pain. The Veteran was seen for podiatry consultation on June 24, 2010, at which time he noted that he had pain in both ankles but more severe in his left ankle and most significant during weight-bearing activities. The provider noted that the Veteran remained active walking and coaching basketball and had obtained Powerstep inserts which had helped significantly with pain. The Veteran underwent left ankle Kenalog/Lidocaine/Marcaine injection; was provided with bilateral lace up ankle braces; was scheduled for physical therapy for strengthening/proprioceptive training; and advised to continue wearing supportive shoe gear with Powerstep inserts and ankle braces. See Albuquerque VA Medical Center (VAMC) records received June 2010 in Veterans Benefits Management System (VBMS). On VA examination on July 19, 2010, the Veteran reported increasing right ankle pain aggravated by prolonged walking or standing which he treated with pain medication with fair results. He also reported giving away, instability, pain, stiffness, decreased speed of joint motion, and severe flare-ups occurring every 5-6 months and generally lasting 1-2 days which he described as incapacitating. He reported that he was unable to walk during his flare-ups due to pain. The Veteran noted that the last flare-up was 3 months prior. Physical examination demonstrated antalgic gait, dorsiflexion limited to 10 degrees and plantar flexion limited to 40 degrees with pain but no additional limitation of motion following repetitive motion. There was also no objective evidence of instability, tendon abnormality, or ankylosis. See July 2010 Joints (Shoulder/Elbow/Wrist/Hip/Knee/Ankle) Examination. In September 2010, the Veteran presented for podiatry consultation with complaints of intermittent ankle pain mostly when weight bearing. It was noted that conservative measures attempted including physical therapy, inserts, ankle braces, and injections had not helped significantly. On physical examination, there was pain with range of motion against resistance in plantar flexion, inversion, and eversion limited by guarding. There was negative anterior drawer and no significant laxity. Magnetic resonance imaging (MRI) was ordered. The Board finds that prior to October 6, 2010, at its worst, the Veteran’s right ankle disability was manifested by dorsiflexion to 10 degrees and plantar flexion to 40 degrees. The record does not demonstrate that the Veteran’s right ankle disability was manifested by malunion of the tibia and fibula with moderate ankle disability, ankylosis, ankylosis of the subastragalar or tarsal joint in poor weight-bearing position, malunion of os calcis or astragalus with marked deformity, or astragalectomy. With respect to whether the Veteran’s right ankle disability prior to October 6, 2010, has been manifested by marked limited motion of ankle, as noted above, the Court remanded the issue for the Board to address whether the functional loss that the Veteran experienced demonstrated a level of disability that more closely approximated marked limitation of the ankle or a decreased range of motion thereof such that a higher rating may have been warranted under Diagnostic Code 5271 or any of the other potentially relevant diagnostic codes. In this case, the July 2010 VA examiner did not address functional loss including additional range-of-motion loss on use or due to flare ups. As noted above, at the July 2010 VA examination, the Veteran reported giving away, instability, pain, stiffness, and decreased speed of joint motion. He also reported severe flare-ups occurring every 5-6 months with the last flare-up occurring three months prior and generally lasting one to two days which he described as incapacitating and causing an inability to walk due to pain. In this case, no pain in the right ankle was noted during primary care visits from March 2009, November 2009, or January 2010; and in May 2010, the Veteran also denied right ankle pain. At the VA examination in July 2010, the Veteran reported that his last flare-up was 3 months prior; however, the record does not indicate any complaints of right ankle flare-up pain, much less any complaints of inability to walk due to right ankle pain, between March 2009 and June 2010. As noted above, in June 2010, the provider noted that the Veteran remained active walking and coaching basketball and had obtained Powerstep inserts which had help significantly with pain. Thus, the Board finds that the Veteran’s report of functional loss of the right ankle due to pain and flare-ups at the July 2010 VA examination is not consistent with the medical evidence of record. In addition, the VA examiners who conducted the February 2016 and May 2017 VA examinations noted that an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flares or when the part was used repeatedly or an estimate the additional loss of motion during flare-ups could not be objectively provide because “reliable provision of this information requires examination in non-flare and flare states whereas the Veteran on the day of the exam was not simultaneously in both states.” The examiners noted that to attempt to provide such information in the absence of such observation represented mere speculation. As the February 2015 and May 2017 VA examiners were not able to determine whether the functional loss the Veteran experienced during flare-ups demonstrated a different level of impairment during a VA examination, to remand the case for a retrospective opinion would only serve to delay final adjudication of the claim, without any additional benefit flowing to the Veteran. The Board, therefore, finds that the information provided in the file is adequate to allow the Board to make a determination as to the appropriate disability rating for the Veteran’s right ankle prior to October 6, 2010, without obtaining a retrospective medical opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008). For the foregoing reasons, the Board finds that prior to October 6, 2010, the Veteran’s right ankle disability did not meet the schedular criteria for a rating higher than 10 percent under Diagnostic Codes 5262, 5270-5274. 38 C.F.R. §§ 4.71a. 2. Entitlement to an evaluation in excess of 10 percent prior to January 21, 2015, and in excess of 30 percent since January 21, 2015 (exclusive of temporary 100 percent evaluations assigned from October 28, 2010 to November 30, 2010, and from February 29, 2016, to April 30, 2016) for left knee disability The Veteran’s service-connected left knee disability (degenerative joint disease) has been assigned a 10 percent rating prior to January 21, 2015, and a 30 percent rating from January 21, 2015 to February 28, 2016, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261, for limitation of leg extension. Diagnostic Code 5010 provides that traumatic arthritis will be rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a. Pursuant to Diagnostic Code 5003, degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Musculoskeletal disabilities of the knee are rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263 -- Diagnostic Code 5256 (ankylosis of the knee); Diagnostic Code 5257 (recurrent subluxation or lateral instability); Diagnostic Code 5268 (dislocated semilunar cartilage; Diagnostic Code 5259 (removal of semilunar cartilage; Diagnostic Code 5260 (limitation of leg flexion); Diagnostic Code 5261 (limitation of leg extension); Diagnostic Code 5262 (nonunion or malunion of the tibia and fibula). Normal (full) range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5261 provides for a 10 percent rating is warranted where leg extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Standard range of motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Diagnostic Code 5262 provides for evaluation of impairment of the tibia and fibula. With malunion and slight knee or ankle disability a 10 percent rating is warranted; with moderate knee or ankle disability a 20 percent rating is warranted; and with marked knee or ankle disability a 30 percent rating is warranted. For a 40 percent rating there must be nonunion of the tibia or fibula with loose motion, requiring a brace. Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Separate disability 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. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997) held that arthritis and instability of the same knee may be rated separately under Diagnostic Codes 5003 and 5257. Subsequently, VAOPGCPREC 9-98 further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). Left knee DJD prior to January 21, 2015 The Veteran’s service-connected left knee disability prior to January 21, 2015, has been assigned a 30 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261, for limitation of leg extension. On October 28, 2010, the Veteran underwent left knee arthroscopic debridement. As such, for the period from October 28, 2010, to November 30, 2010, a 100 percent temporary total rating has been assigned. Thus, this period is not considered in the below analysis. In order for an evaluation higher than the assigned 10 percent rating to be warranted pursuant to diagnostic code 5261 for the left knee prior to January 21, 2015, there must be extension of the leg limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5261. In addition, an evaluation higher than the assigned 10 percent rating may also be warranted under another diagnostic code for ankylosis of the knee; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or nonunion of the tibia and fibula with loose motion requiring a brace or malunion of the tibia and fibula with ankle disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, and 5262. Further, a separate evaluation may be assigned for recurrent subluxation or lateral instability and flexion of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5257 and 5260. VA treatments records indicate that the Veteran was seen by his primary care provider in March 2009 at which time the assessment was knee pain with some locking four to five times per month, probable meniscal tear. X-rays of the left knee showed severe degenerative changes of the patellofemoral joint and mild to moderate amount of degenerative changes seen in the medial and lateral compartments of the knee. The Veteran was seen by his primary care provider in November 2009, and January 2010; and on physical examination, there was no lower extremity pain. The Veteran was seen by his primary care provider on May 7, 2010 at which time he described pain in the left leg and noted that he felt that he was dragging his leg. The assessments in November 2009, January 2010, and May 7, 2010, included that x-rays showed degenerative joint disease. On May 12, 2010, the Veteran was seen for, inter alia, pain in the left knee. On physical examination, the left knee demonstrated no swelling, normal Lachman’s, normal range of motion, and a large scar. X-rays showed moderate degenerative changes of the left knee similar in appearance in the interval and possible posttraumatic changes of the left patella. Assessment was left knee pain. On May 15, 2010, the Veteran presented to the Emergency Department with complaints of, inter alia, left knee pain. The Veteran was seen for orthopedic consultation for his left knee on June 18, 2010; he described 7/10 pain and knee grinding. On physical examination, the Veteran was ambulatory without assistive devices. He was seated comfortably. His knee was not swollen. His patella was mobile and mildly tender to manipulation. Ballottement and bulge signs were negative. His quadriceps tendon was nontender to palpation, and his collateral ligaments were nontender. Varus/valgus stress was negative. Active motion was within normal limits; hamstrings were tight. There was notable crepitus with passive range of motion. His lateral joint line was mildly tender to palpation. Lachman, drawer, and sag tests indicated intact cruciate ligaments. McMurray test was negative. Review of previous weight-bearing knee series showed advanced anterior compartment degenerative joint disease, patella alta, and a significant patellar tendon enthesophyte. Assessment included advanced anterior and mild medial/lateral compartment degenerative joint disease of the left knee. See Albuquerque VAMC records received June 2010 in VBMS. On VA examination on July 19, 2010, the Veteran reported increasing left knee pain aggravated by prolonged walking or standing. He reported being treated with pain medication with fair results. He also reported giving away, instability, pain, stiffness, weakness, decreased speed of joint motion, and severe flare-ups occurring every 5-6 months and generally lasting one to two days which he described as incapacitating. The Veteran noted that the last flare-up was three months prior. Physical examination demonstrated antalgic gait, normal extension and flexion limited to 130 degrees with pain but no additional limitation of motion following repetitive motion. There was also no objective evidence of instability, meniscus abnormality, or ankylosis, but there was pain at rest, abnormal motion, crepitation, grinding, and subpatellar tenderness. The Veteran was diagnosed as having degenerative disease of the left knee. See July 2010 Joints Examination. On October 28, 2010, the Veteran underwent left knee arthroscopic debridement. As noted above, for the period from October 28, 2010 to November 30, 2010, a 100 percent temporary total rating has been assigned and is, therefore, not considered. 3. Physical Medicine Rehab Consultation notes indicate that in January 2011, the Veteran’s left knee felt good; and in February 2011, he reported left knee stiffness. See Albuquerque VAMC records received July 2011 in VBMS. On VA examination on October 26, 2011, the Veteran reported daily 7.5/10 left knee pain. He also reported giving out and buckling twice a week as well as swelling once a week additionally limiting activity. On physical examination, flexion was limited to 90 degrees with pain beginning at zero degrees and left knee extension limited to 5 degrees with pain at end. On repetitive use testing, left knee flexion was to 90 degrees and extension was to 5 degrees; there was no additional limitation of range of motion of the knee following repetitive use testing. The Veteran had functional loss, functional impairment with less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The Veteran had tenderness to palpation for joint line or soft tissue of the knee. Muscle strength testing was 4/5. Joint stability tests were normal; patellar subluxation/dislocation was severe in the left knee. The examiner noted that the Veteran had “shin splints” (medial tibial stress syndrome). The examiner noted that the Veteran constantly used braces and occasionally used crutches. See October 2011 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). A March 2012 Orthopedic Surgery Consultation note indicates that on examination, there was no effusion or erythema. The left knee was tender to palpation of the patella with a very positive patellar grind. Valgus stress caused lateral compartment pain without laxity. Varus stress was unremarkable. There was an anterior Drawer’s sign with a solid endpoint, and McMurray’s caused marked patellar crepitus. Active range of motion was from 10 degrees to 105 degrees; passive range of motion was from zero degrees to 120 degrees. Two days later, his left knee was injected with viscosupplementation. See Albuquerque VAMC records, received April 2012 in Compensation and Pension Record Interchange (CAPRI)/VBMS. A June 2012 Orthopedic Surgery Consultation note indicates very mild effusion but no erythema of the left knee. There was also no tenderness over the injection portal site. The provider noted that the remainder of the examination was unchanged from March 2012 except that his pain was much less. Orthopedic Surgery Consultation notes in September 2012 and March 2013 indicate that the Veteran’s left knee symptoms were not severe enough to consider joint replacement; and on examination, there was no effusion or erythema present. Injections of viscosupplementation were given. A November 2013 Physical Medicine Rehab Consultation note indicates that on physical examination, the Veteran’s knees demonstrated active range of motion within full limits in all planes pain free. A November 2013 Orthopedic Surgery Consultation note indicates that the Veteran was responding well to Synvisc; and an injection of viscosupplementation was given. See Albuquerque VAMC records, received January 2014 in CAPRI/VBMS. A December 2013 Attending Emergency Department note indicates that the Veteran was seen with complaints of low back pain radiating into the right buttock. The Veteran’s extremities were noted to be nontender with no deformity, edema, and full range of motion. See Albuquerque VAMC records, received March 2014 in CAPRI/VBMS. A July 2014 Orthopedic Surgery Consultation note indicates that the Veteran’s left knee symptoms were not severe enough to consider joint replacement; and on examination, there was no effusion or erythema present. An injection of viscosupplementation was given. After careful review of the evidence, the Board finds that a separate 20 percent rating is warranted based on moderate recurrent subluxation prior to October 26, 2011, and that a separate 30 percent rating is warranted based on severe recurrent subluxation from October 26, 2011, to prior to January 20, 2015. As noted above, in March 2009, the Veteran reported locking four to five times per month; on VA examination in July 2010, the Veteran reported giving way and instability; on VA examination in October 2011, the Veteran reported giving out and buckling twice a week. Although joint stability tests were normal, the October 2011 VA examiner noted severe patellar subluxation/ dislocation. The October 2011 VA examination is instructive in determining that the Veteran’s subluxation was moderate prior to October 26, 2011. At the October 2011 VA examination, the Veteran reported that the left knee gives out buckling twice a week and that the Veteran had right knee symptoms once a week. The examiner found evidence or history of moderate subluxation on the right and severe subluxation on the left. The Board does not find that a rating higher than 10 percent is warranted or that separate compensable ratings are warranted for the Veteran’s limitation of motion prior to January 21, 2015. At its worst, extension was limited to 10 degrees, and there was no objective evidence of left knee flexion limited to 45 degrees. Furthermore, with respect to the Veteran’s pain, the objective findings did not show that pain actually limited his left knee to such an extent as to satisfy the criteria provided for a compensable rating for limitation of flexion or for a 20 percent rating for limitation of extension under Diagnostic Codes 5260 or 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The July 2010 and October 2011 VA examiners noted that the Veteran did not have additional limitation in range of motion of the knee following repetitive use testing. Therefore, even considering the Veteran’s left knee pain, he would not meet the criteria for higher ratings under Diagnostic Codes 5260 and 5261. As noted above, the VA examiners who conducted the February 2016 and May 2017 VA examinations noted that an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flares or when the part was used repeatedly or an estimate the additional loss of motion during flare-ups could not be objectively provide because “reliable provision of this information requires examination in non-flare and flare states whereas the Veteran on the day of the exam was not simultaneously in both states.” The examiners noted that to attempt to provide such information in the absence of such observation represented mere speculation. As the February 2015 and May 2017 VA examiners were not able to determine whether the functional loss the Veteran experienced on repetitive use and during flare-ups demonstrated a different level of impairment during a VA examination, to remand the case for a retrospective opinion would only serve to delay final adjudication of the claim, without any additional benefit flowing to the Veteran. The Board, therefore, finds that the information provided in the file is adequate to allow the Board to make a determination as to the appropriate disability rating for the Veteran’s left knee DJD prior to January 21, 2015, without obtaining a retrospective medical opinion. See Chotta, 22 Vet. App. at 80. Finally, at no time during the appeal period has there been ankylosis of knee, dislocated semilunar cartilage, or impairment of the tibia and fibula warranting a higher rating under Diagnostic Codes 5256, 5258, or 5262. For the foregoing reasons, the Board finds that prior to January 21, 2015, the Veteran’s left knee disability did not meet the schedular criteria for a rating higher than 10 percent under Diagnostic Codes 5256 to 5262. 38 C.F.R. §§ 4.71a. Left Knee DJD from January 21, 2015, to February 28, 2016 The Veteran’s service-connected left knee disability from January 21, 2015, to February 28, 2016, has been assigned a 30 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5261, for limitation of leg extension. In order for an evaluation higher than the assigned 30 percent rating to be warranted for the left knee prior from January 21, 2015, to February 28, 2016, there must be ankylosis of the knee; extension of the leg limited to at least 30 degrees; or nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5261, and 5262. On January 21, 2015, the Veteran called and reported that he got an injection in his left knee and that it was swollen and painful. He was advised to have someone drive him to the emergency department. The Veteran was seen in the Emergency Department with complaints that his left knee pain was getting worse and that the Veteran was unable to stand on his left leg. Physical examination demonstrated that the Veteran’s left knee was swollen and tender to palpation. There was decreased range of motion, and he was barely able to stand. A January 21, 2015, Orthopedic Surgery Consultation note indicates that on examination, the Veteran’s left knee demonstrated moderate effusion. It was not tender to palpation, and it was not warm to the touch. Range of motion was from 20 degrees to 80 degrees. There was no pain with axial loading. An injection of viscosupplementation was given. The Veteran underwent VA examination on February 18, 2016, at which time he reported daily pain with constant 6-9/10 pain. Physical examination demonstrated flexion to 105 degrees and extension to 5 degrees with pain. Left knee strength on flexion and extension was 4/5; and there was muscle atrophy. There was no ankylosis, no subluxation, and no instability. Shin splints were noted but no meniscal condition. There was pain with weight bearing and objective evidence of superior and lateral tenderness. There was no additional functional loss or range of motion after three repetitions. The examiner noted that the examination was being conducted during a flare-up. The examiner noted that he could not objectively provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flares or when the part is used repeatedly or estimate the additional loss of motion during flare-ups because “reliable provision of this information requires examination in non-flare and flare states whereas the Veteran on the day of the exam was not simultaneously in both states.” The examiner noted that to attempt to provide such information in the absence of such observation represented mere speculation. After careful review of the evidence, the Board does not find that a rating higher than 30 percent is warranted or that separate compensable ratings are warranted for the Veteran’s left knee disability from January 21, 2015, to February 28, 2016. From January 21, 2015, to February 28, 2016, at its worst, extension was limited to 20 degrees. There was no objective evidence of instability or subluxation. In addition, there is no competent evidence of left knee limitation of flexion to a compensable level. Furthermore, with respect to the Veteran’s pain, the objective findings did not show that pain actually limited his left knee to such an extent as to satisfy the criteria provided for a compensable rating for limitation of flexion or for a 40 percent rating for limitation of extension under Diagnostic Codes 5260 or 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The February 2016 VA examiner noted that the Veteran did not have additional limitation in range of motion of the knee following repetitive use testing. The examiner noted that he could not objectively provide an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flares or when the part is used repeatedly or estimate the additional loss of motion during flare-ups because “reliable provision of this information requires examination in non-flare and flare states whereas the Veteran on the day of the exam was not simultaneously in both states.” Therefore, even considering the Veteran’s left knee pain, he would not meet the criteria for higher ratings under Diagnostic Codes 5260 and 5261. Finally, at no time during the appeal period has there been ankylosis of knee, or impairment of the tibia and fibula warranting a higher rating under Diagnostic Codes 5256 or 5262. For the foregoing reasons, the Board finds that from January 21, 2015, to February 28, 2016, the Veteran’s left knee disability did not meet the schedular criteria for a rating higher than 30 percent under Diagnostic Codes 5256 to 5262. 38 C.F.R. §§ 4.71a. Total Left Knee Replacement from May 1, 2017 The Board notes that on February 29, 2016, the Veteran underwent total left knee replacement. As such, for the period from February 29, 2016, to April 30, 2017, a 100 percent temporary total rating has been assigned. The Veteran’s service-connected left knee disability (status post total knee replacement) has been assigned a 30 percent rating since May 1, 2017, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5055 for knee replacement. Pursuant to Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis. The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to Diagnostic Codes 5256, 5260, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. In order for an evaluation higher than the assigned 30 percent rating to be warranted for the left knee from May 1, 2017, there must be chronic residuals consisting of severe painful motion or weakness in the left knee; ankylosis of the knee; extension of the leg limited to at least 30 degrees; or nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5261, and 5262. The Veteran underwent VA examination in May 2017 at which time he reported that he was pretty happy overall with the knee surgery. “I had a tough time with physical therapy and the knee still swells and it keeps me from working out the way I wanted like the PT knee bending exercises.” The Veteran reported that he had has missed “at least 2 1/2 weeks” of work in the prior six-month period due to his left knee. The Veteran reported that his knee flared up “probably 3 [times per] week and will stay swollen up to a day.” He also noted mostly stiffness, swelling, and “somewhat” pain. Physical examination demonstrated flexion to 105 degrees and extension to 10 degrees. Pain was noted on examination in flexion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue and no objective evidence of crepitus. On repetitive use testing, there was no additional functional loss or range of motion after three repetitions. The examiner noted that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use after time and during flare-up. Muscle strength was normal; but the examiner noted muscle atrophy demonstrated by a 3.5 centimeter different in circumference of the left lower extremity. There was also no ankylosis and no subluxation or instability. After careful review of the evidence, the Board does not find that a rating higher than 30 percent is warranted or that separate compensable ratings are warranted for the Veteran’s left knee disability since May 1, 2017. Since May 1, 2017, although there is evidence of “somewhat” pain, the pain has not been noted to be severe. The Veteran’s range of motion was from 10 degrees to 105 despite the presence of pain on flexion. Further, muscle strength testing in the left lower extremity was normal. Furthermore, with respect to the Veteran’s pain, the objective findings did not show that pain actually limited his left knee to such an extent as to satisfy the criteria provided for a compensable rating for limitation of flexion or for a 40 percent rating for limitation of extension under Diagnostic Codes 5260 or 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The May 2017 VA examiner noted that the Veteran did not have additional limitation in range of motion of the knee following repetitive use testing and that the left knee examination was conducted during a flare-up. Therefore, even considering the Veteran’s left knee pain, he would not meet the criteria for higher ratings under Diagnostic Codes 5260 and 5261. Finally, at no time during the appeal period has there been ankylosis of knee, or impairment of the tibia and fibula warranting a higher rating under Diagnostic Codes 5256 or 5262. For the foregoing reasons, the Board finds that since May 1, 2017, the Veteran’s left knee disability did not meet the schedular criteria for a rating higher than 30 percent under Diagnostic Code 5055. 38 C.F.R. §§ 4.71a. Extraschedular Ratings In general, disability ratings are determined by applying the VA’s Schedule for Rating Disabilities (Rating Schedule). See 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, in exceptional cases, schedular ratings may be inadequate. See 38 C.F.R. § 3.321 (b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated periods of hospitalization so as to render the regular schedular standards impractical. There is a three-step inquiry for determining whether an extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for a service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability, and symptomatology and is found to be inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors, such as “governing norms.” See id. at 115-16 (citing 38 C.F.R. § 3.321 (b)(1) and noting that related factors include marked interference with employment and frequent periods of hospitalization). Third, if the rating schedule is inadequate to evaluate a claimant’s disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director to determine whether, in the interests of justice, the claimant’s disability picture requires the assignment of an extraschedular rating. See id. at 116. 4. Entitlement to evaluations in excess of 20 percent for left and right ankle disabilities on an extraschedular basis In this case, the record contains complaints of foot and ankle cramps especially at night causing the Veteran to lose sleep. At the Travel Board hearing in May 2015, the Veteran testified that he could only walk a block or two before starting to have issues. The Veteran testified that he had a major incident in which he fell because he did not raise his foot high enough when he was walking. The Veteran testified, “… my job is mostly facility, so I’m running around to the parking lots and, you know, carrying cargo and stuff like that, turning in equipment.” At the VA examination in February 2016, the Veteran reported flares occurring three times weekly with severe shooting pains lasting 10 minutes moderately to severely additionally limiting activity. The Veteran also reported impaired walking, standing, and sleeping with cramps every night. The examiner noted that the condition mildly impaired sedentary work and severely impaired physical work. A request for extraschedular consideration was submitted by the AOJ along with the recommendation that entitlement to increased evaluations for left and right ankle impairments on an extraschedular basis be denied. The AOJ’s recommendation noted, Review of the record showed that the right ankle is currently evaluated at 20 percent effective October 6, 2010. The left ankle is currently evaluated at 20 percent effective November 1, 2013. The most recent examinations do not support increased evaluations for either ankle. The right ankle was evaluated at the current percentage by the September 2015 examination. The left ankle has had two (2) periods of several months convalescence following surgery or other treatment (2011 & 2013). The left ankle was evaluated at the current percentage by the February 2016 examination. Review of the Rating Schedule, Paragraph 4.71a,Title 38, CFR did not show or indicate that these two disabilities are inadequately evaluated. Disability Codes(DC) 5262 and 5270 provide for evaluations at 30 percent, but neither disability meets the criteria for a higher award. Malunion of tibia and fibula with marked ankle disability can be awarded a 30 percent evaluation under DC 5262. Ankylosis of the ankle with appropriate plantar flexion and dorsiflexion can be awarded a 30 percent evaluation under DC 5270. Neither ankle meets that criterion. The evidence does not show an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Director of Compensation Service found that no extraschedular entitlement existed for the service-connected bilateral ankle disabilities under 38 C.F.R. 3.321(b)(1) and that there was no unemployability or combined effect shown. The Director noted, Upon review of the record there is no evidence that shows frequent hospitalization, or marked interference with work due solely to the aforementioned disabilities. VA examiners indicated that bilateral ankle osteoarthritis makes walking and standing difficult with no preclusion to occupational sedentary activity. Available objective medical evidence reveals that none of the Veteran’s conditions warrants an increased evaluation on a schedular or extra-schedular basis nor has any collective impact been shown. Pursuant to the Code of Federal Regulations the rating schedule is not shown to be inadequate for rating purposes and preservation remains for analogy under 38 C.F.R. 4.20. There are several non-service-connected disabilities identified, which have not been differentiated from service-connected conditions (Cathell v. Brown). Therefore, since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran’s unemployability (Blackburn v. Brown) increased evaluation nor TDIU are warranted on an extra-schedular basis. Based on the lay and medical evidence of record, the Board finds that extraschedular ratings in excess of 20 percent for the Veteran’s left and right ankle disabilities are not warranted. The record does not show, and the Veteran does not contend, that his service-connected ankle conditions necessitate frequent hospitalizations. The record also does not demonstrate that the Veteran’s ankle disabilities have resulted in marked interference with employment. Although the Veteran’s ankle disabilities are noted to severely affect the physical aspects of the Veteran’s employment, there is no indication that this caused “marked” interference with employment. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. As such, the Board is not disputing that the Veteran’s service-connected ankle disabilities interfere with his ability to work, especially the physical aspect of his position. This alone is not tantamount to concluding there is marked interference with his employment, meaning above and beyond that contemplated by the assigned rating. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating itself is recognition that industrial capabilities are impaired. In this case, the Veteran has been able to work full time. VA treatment records indicate that in September 2012, the Veteran reported that work was going well, that he got a promotion, and that he had been there for three years. In November 2013, the Veteran reported that he did office work and was able to complete all of his work pain free. See Albuquerque VAMC records, received January 2014 in CAPRI/VBMS. At the Travel Board Hearing in May 2015, the Veteran testified that he was an executive assistant and that he was running around to the parking lots and carrying cargo. However, there is no evidence in the record of any absences from work due to his ankle disabilities. (Continued on the next page)   Thus, the Board finds that the symptomatology and manifestations caused by the Veteran’s service-connected ankle disabilities are not shown to present an exceptional or unusual disability picture productive of marked interference with employment or frequent periods of hospitalization. Accordingly, the Board finds that an increased rating in excess of 20 percent is not warranted on an extraschedular basis for either the right or left ankle disability. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Olson