Citation Nr: 18156275 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-30 926 DATE: December 7, 2018 ORDER An initial rating in excess of 10 percent disabling for a left knee disability (instability) is denied. A separate 10 percent rating for painful limited flexion is granted. An initial rating of 20 percent, but no higher, for a left ankle strain, is granted. An initial rating of 20 percent, but no higher, for a right ankle strain, is granted. FINDINGS OF FACT 1. The Veteran’s left knee disability is manifested by subjective instability and weakness and uses a knee brace for support. 2. The Veteran’s left knee disability is manifested by painful left knee flexion with slight limitation of motion. 3. The Veteran’s bilateral ankle disability is manifested by daily pain resulting in marked limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent disabling for left knee patellofemoral syndrome (instability) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5256-62. 2. The criteria for a separate rating of 10 percent disabling for left knee patellofemoral syndrome (flexion) have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260. 3. The criteria for an initial rating of 20 percent, but no higher, for bilateral ankle strains have been met. 38 U.S.C. §1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5270-5274. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1974 to August 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and November 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in November 2017. A transcript is of record. In March 2018, the Board remanded the issues of increased ratings for left knee and bilateral ankle disabilities for additional development. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008).   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 percentages are based on the average impairment of earning capacity as a result of 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 the 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 will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 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.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to an initial rating in excess of 10 percent disabling for left knee patellofemoral syndrome. The Veteran is currently rated as 10 percent disabling for left knee patellofemoral syndrome under Diagnostic 5257. See 38 C.F.R. § 4.71a. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). The knees are considered major joints. 38 C.F.R. § 4.45(f). Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. Finally, DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Under DC 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. Notwithstanding that some of VA examinations and other physical examinations discussed below failed to test passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that part of the examination reports nevertheless are useful to evaluate the Veteran’s knee disability picture. Indeed, passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). Cynthia Norkin & D. Joyce White, Measurement of Joint Motion: A Guide to Goniometry 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran’s left knee is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. The VA examination in November 2010 addressed the Veteran’s left knee. He did not have subluxation, dislocation or flare-ups. His range of motion for flexion was 100 degrees (90 degrees with objective pain on repetition), and extension was zero degrees. He was able to perform repetitive use testing. He had mild swelling at the time. The examiner noted that there was no evidence of ligamentous laxity and McMurray test was negative. He underwent an additional VA examination in August 2012. He reported flare-ups every other day with 8/10 pain, but it was worse in his right knee than in his left. He had left knee flexion of 110 degrees with pain at 100, and no limitation of extension. He was able to perform three times repetitive use testing. However, he did have functional loss and impairment after repetitive use in that he had pain on movement, disturbance of locomotion, and interference with sitting, standing and weightbearing. He had normal muscle strength (5/5). The examiner reported normal stability of the left knee upon testing (Lachman test, posterior drawer test, medial-lateral instability) and no history of subluxation, dislocation, or meniscal conditions or procedures. He used a cane for stability. The Veteran did not have stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran’s most recent VA examination is from May 2018. The Veteran acknowledged left knee flare-ups where he would have pain and swelling, had functional loss and impairment, and required the constant use of a brace. His flexion was 135 degrees and extension of zero degrees. His range of motion itself did not contribute to functional loss, pain was noted at the examination, but did not cause functional loss. He did not have crepitus and did not have pain with weight bearing. Again, he was able to perform repetitive use testing, with no additional loss of range of motion. Regarding evaluation of the left knee after repetitive use after time and during flare-ups, the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss as the examiner was unable to opine without speculation. He had normal muscle strength, no muscle atrophy, no ankylosis, and no subluxation or lateral instability. He also had normal anterior, posterior, medial, and lateral stability. The examiner noted that there was objective evidence of pain on passive range of motion testing of the left knee, but no evidence of pain on non-weight bearing testing of the left knee. He did not have degenerative or traumatic arthritis or a meniscus condition. Lastly, the Veteran did not have stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. It is acknowledged that some of examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). As noted above, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected left knee. As such, the Board finds that it has adequate competent evidence when viewed in total to assess the Veteran’s left knee disability picture. The Veteran testified at a Board Hearing in November 2017 that his knee locks up frequently, up to, and including every day. His medical records document popping and cracking. After review of the competent and probative evidence, the Board finds that a rating higher than the current 10 percent under DC 5257 is not warranted. In this regard, the Board notes the Veteran’s testimony of popping and his regular use of a brace upon examination in 2018 and his use of a cane, as recorded at the 2012 VA examination. However, after reviewing the several VA examination reports of record during the period on appeal, the Board finds that these collective pieces of evidence reflect no evidence of weakness or instability upon various physical testing. The Board finds that such competent medical weighs against a finding that the Veteran’s left knee disability has manifested as moderate weakness or instability. The Board places weight on this evidence as the various tests were developed to specifically measure instability and were administered by specially training and educated medical professional. Additionally, the collective evidence from the Veteran’s VA examinations consistently document normal stability testing and no lateral instability. See English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (Vet. App. Nov. 1, 2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence. For these reasons, the Board finds that a higher rating for stability of the left knee is not warranted. A rating under DC 5003 is not warranted as the Veteran did not have degenerative or traumatic arthritis. For example, the 2018 VA examination report reflects diagnostic testing (imaging studies) did not document degenerative or traumatic arthritis. Furthermore, a separate rating under DC 5258 is not warranted for the Veteran’s left knee as the Veteran does not have a meniscal condition. The 2018 VA examination report specifically found that the Veteran does not now and had not ever had a meniscus condition. The Board acknowledges that the Veteran has testified that his knee frequently locks, and he has reported both pain and swelling during flare-ups at his VA examinations. However, his medical records and VA examinations are absent for a dislocated semilunar cartilage or its equivalent. Likewise, a separate rating is not warranted under DC 5259 as the competent evidence does not show removal of symptomatic semilunar cartilage. Ratings under DCs 5260 and 5261 are not warranted as he has had left knee flexion of no worse than 100 degrees, which is noncompensable. He has had left knee extension of zero degrees, which is also noncompensable. However, he had pain on flexion, to include pain on palpation of the joint upon examination in 2018. This examination report noted that the Veteran had pain on flexion. Even though this report indicates that the pain did not cause functional loss, the Board finds that under § 4.59, he is entitled to the minimal compensable rating of 10 percent for limited flexion. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent rating already compensates the Veteran for any functional loss due to pain affecting the left knee, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. For example, as noted above, the 2018 VA examination report reflects that he had pain, but it did not result in/cause functional loss. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. In this regard, VA regulations state that the knee is considered a single major joint. 38 C.F.R. § 4.45 In sum, the Veteran’s left knee disability is more nearly approximated by the current rating throughout the period on appeal. 2. Entitlement to ratings in excess of 10 percent for bilateral ankle strains. The Veteran is currently rated as 10 percent disabling for each ankle under DC 5271. Under Diagnostic Code 5271, a 10 percent rating is warranted where there is moderate limitation of motion of the ankle, and a 20 percent rating is warranted where there is marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. While the schedule of ratings does not provide any information as to what manifestations constitute “moderate” or “marked” limitation of ankle motion, guidance for raters can be found in VA policy. The VA guidance notes that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board may consider such as a factor when looking at the totality of the Veteran’s left and right ankle disability picture. Ankle disabilities can be rated under Diagnostic Codes 5270 (ankylosis of the ankle); 5272 (ankylosis of the subastragalar or tarsal joint); 5273 (malunion of os calcis or astragalus); and 5274 (astragalectomy). 38 C.F.R. § 4.71a, DCs 5270-5274. The Veteran underwent a VA examination for his bilateral ankle disability in August 2012. He reported flare-ups in that he would roll both ankles particularly when he did not wear his custom boots, occurring twice per week, lasting 6-8 hours, and would feel like sharp, needle-like pain. At the time of the examination, the Veteran had normal range of motion for his right and left ankle except that he had objective evidence of painful motion for left ankle plantar extension at 15 degrees. The Veteran was able to perform three times repetitive use testing, with normal range of motion testing afterwards. However, the examiner also reported that the Veteran had disturbance of locomotion, and interference with sitting, standing, and weight-bearing in both ankles, as well as pain on movement in both ankles. He had normal muscle strength and joint stability in his ankles. He did not have ankylosis. The Veteran occasionally used braces, and regularly used custom high-top boots. The Veteran had not had shin splints, stress fractures, achilles tendonitis/rupture, malunion of calcaneus or talus, and no talectomy. The Veteran’s most recent VA examination for his ankles was in May 2018. He reported flare-ups in that he had pain and swelling in his right ankle and he used a brace for his left ankle. He also acknowledged functional loss and impairment with pain and swelling. The Veteran’s right and left ankles had dorsiflexion of 15 degrees, and plantar flexion of 45 degrees. While he had pain on examination, he did not have functional loss, crepitus, or pain with weight bearing. Moreover, his range of motion did not contribute to functional loss, and there was no objective evidence of localized tenderness. He was able to perform three times repetitive use testing with no additional loss of range of motion. Regarding evaluation of the ankles after repetitive use after time and during flare-ups, the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss as the examiner was unable to opine without speculation. The Veteran had normal muscle strength, no atrophy, and no ankylosis. He did not have had shin splints, stress fractures, achilles tendonitis/rupture, malunion of calcaneus or talus, and no talectomy. Degenerative and traumatic arthritis were not documented. The examiner reported objective evidence of pain on passive range of motion testing, but no pain on non-weight bearing testing of the ankles. His medical treatment records also document chronic ankle pain. He also testified at a Board hearing that he had daily ankle pain of 6-7/10. The Board notes that because there is no indication that the structural integrity of the Veteran’s left or right ankle is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing in some of the VA examinations is not prejudicial. Additionally, it is also acknowledged that some of the examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Indeed, even if the examiner provided a speculative “number” this would hold little probative weight given the examiner’s lack of confidence in the information (i.e., having labeled it as speculative to begin with). Additionally, as noted above, the examination reports contain evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected ankles. As such, the Board finds that it has adequate competent evidence to assess the Veteran’s left ankle disability picture. Finally, as will be discussed next, the Board is awarding the maximum schedular rating for each ankle. After reviewing the pertinent medical and lay evidence, the Board finds that ratings of 20 percent are warranted for the Veteran’s left and right ankle strains under DC 5271. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds these ratings are based, in part, on evidence of pain on passive range of motion, as well as pain and swelling requiring the use of braces consistently. Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The Board acknowledges that the Veteran’s range of motion testing does not indicate marked limitation of motion as he has had no worse than dorsiflexion of 15 degrees and plantar flexion of 45 degrees during the period on appeal. However, the Board finds several factors produce a disability picture more nearly approximated by the next-higher (maximum) schedular rating. In this regard, the Veteran requires the use of ankle braces, reports daily flare-ups, swelling and pain, and has had documented disturbance of locomotion, and interference with sitting, standing, and pain on movement, ratings of 20 percent for his left and right ankle strains are warranted. Additionally, the 2012 VA examination report reflects that uses custom high-top boots for ankle support. Additionally, separate and/or higher ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274 because the weight of the competent and probative evidence is against finding ankylosis, malunion of os calcis or astragalus, or astragalectomy. For example, the VA examination reports in August 2012 and May 2018 did not reflect ankylosis of the ankles or any other diagnosis other than ankle strains. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the now assigned ratings already compensate the Veteran for any functional loss due to pain affecting the ankles, to include pain, swelling, and the use of braces. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. Indeed, in Johnston v. Brown, 10 Vet. App. 80, 84–85 (1997), the Court found that remand was inappropriate, notwithstanding the Board’s failure to consider additional functional loss under DeLuca, because the appellant was already receiving the maximum schedular evaluation. In sum, the Veteran’s bilateral ankle disabilities are more nearly approximated by the current maximum schedular rating throughout the period on appeal. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel