Citation Nr: 1806738 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-24 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left ankle disability, to include as secondary to residual limitation of motion status post distal tibiofibular area fracture of the right ankle. 2. Entitlement to service connection for service connection for erectile dysfunction. 3. Entitlement to an initial evaluation in excess of 40 percent for limitation of extension of the left knee. 4. Entitlement to an initial evaluation in excess of 40 percent for limitation of extension of the right knee. 5. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee. 6. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee. 7. Entitlement to a rating in excess of 20 percent for residual limitation of motion of the right ankle status post distal tibiofibular area fracture. 8. Entitlement to a disability rating due to individual unemployability (TDIU) prior to November 6, 2008. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from July 1975 to August 1978. These matters come before the Board of Veterans' Appeals (Board) from a May 2008 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a left ankle disorder, and denied a disability rating in excess of 10 percent for residual limitation of motion, status post distal tibiofibular area fracture of the right ankle. In a June 2008 notice of disagreement, the Veteran disagreed with the decision. In a March 2009 rating decision, the RO (1) granted service connection for limited extension, left knee with an evaluation of 10 percent effective November 6, 2008, (2) granted service connection for limited extension, right knee with an evaluation of 10 percent effective November 6, 2008, (3) increased to 20 percent, effective November 6, 2008, the evaluation of residual limitation of motion, status post distal tibiofibular area fracture of the right ankle, (4) continued a 10 percent evaluation for chondromalacia of the left knee, (5) continued a 10 percent evaluation for chondromalacia of the right knee, (6) denied service connection for erectile dysfunction with loss of use of the sexual reproductive system, (7) continued a denial of service connection for a left ankle condition, and deferred a decision on entitlement to TDIU. In a March 2009 notice of disagreement, the Veteran noted that he disagreed with the March 2009 decision, and wished to appeal all issues addressed in it. In a December 2009 rating decision, the RO denied entitlement to TDIU. In an April 2010 letter, the Veteran requested to be reconsidered for TDIU. In a March 2010 rating decision, the RO provided an increased evaluation of 40 percent for limited extension of the right and left knees, effective November 6, 2008. As this does not represent the highest available rating for limited extension of the knees, the issues remain on appeal. The Veteran testified in a July 2016 videoconference hearing before the undersigned VLJ. A transcript is included in the claims file. The issues were remanded by the Board in December 2016. At that time, the issue of entitlement to service connection for an acquired psychiatric disorder was also on appeal. A May 2017 rating decision granted service connection for an acquired psychiatric disorder back to the date of claim. To date, the Veteran has not expressed disagreement with the decision and, as such, the claim is no longer on appeal. The issues of entitlement to service connection for a left ankle disorder and erectile dysfunction and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeals period, the Veteran's right knee disability is not manifested by a range of motion limited to 30 degrees flexion and 45 degrees extension. 2. Throughout the appeals period, the Veteran's left knee disability is not manifested by a range of motion limited to 30 degrees flexion and 45 degrees extension. 3. The Veteran's service-connected right ankle disability is manifested by marked limitation of motion without evidence of ankylosis. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5260 (2017). 2. The criteria for an initial disability rating higher than 40 percent for limitation of extension of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5261 (2017). 3. The criteria for a disability rating higher than 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5260 (2017). 4. The criteria for an initial disability rating higher than 40 percent for limitation of extension of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5261 (2017). 5. The criteria for an evaluation in excess of 20 percent for a right ankle disability are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board finds that the prior remand directives were substantially complied with and that the VA examinations of record are adequate to address the merits of the herein decided claims. II. Increase Ratings Rules and Regulations- General Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. When two ratings apply under a particular Diagnostic Code (DC), the higher evaluation is assigned if the disability more closely approximates such criteria. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function are expected in all instances. 38 C.F.R. § 4.21. In increased rating claims, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending, it is appropriate to apply staged ratings for each distinct time period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Although 38 C.F.R. §§ 4.1 and 4.2 stipulate that VA must view each disability "in relation to its history" to "accurately reflect the elements of disability present," a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). A. Right and Left Knee Disabilities Rules and Regulations - Specific The Veteran is appealing disability ratings of 40 percent for right and left knees based on limitation of extension. The Veteran is also appealing disability ratings of 10 percent each for right and left knees based on limitation of flexion. For disabilities evaluated on the basis of limitation of motion, 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment, apply. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Range of motion ratings under 38 C.F.R. § 4.71a do not subsume 38 C.F.R. § 4.40, and 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups. DeLuca, 8 Vet. App. at 205-06. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis, substantiated by X-ray findings, is rated on limitation of motion of affected parts. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that 38 C.F.R. §§ 4.40 and 4.45 require that the disabling effect of painful motion be considered when rating joint disabilities. Deluca, 8 Vet. App. 202, 205-06 (1995). Pursuant to 38 C.F.R. § 4.40 , "[d]isability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance." Further, functional loss "may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled." Id. A compensable rating for arthritis can be awarded on the basis of X-ray findings and painful motion under 38 C.F.R. § 4.59 even without motion being compensably limited under the rating schedule. VAOPGCPREC 9-98 (1998). Although Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991) held that painful motion is deemed limited motion warranting the minimum scheduler rating based on limited motion, even without actually limited motion, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) it was it was held that pain throughout range of joint motion, which does not limit motion, does not warrant more than the minimum scheduler rating. See Petitti v. McDonald, No. 13-3469, slip op. at 13 (U.S. Vet. App. October 28, 2015) (per curiam) (observing that Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) aptly stated that under 38 C.F.R. §§ 4.40 and 4.45 "pain in and of itself does not rise to the level of functional loss" and; rather, quoting 38 C.F.R. § 4.40 "pain may result in functional loss, but only if it limits the ability 'to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] or endurance.'"). Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). 38 C.F.R. § 4.71a, DC 5256 provides for a 30 percent rating (and even higher ratings) for ankyloses of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). According to DC 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. § 4.71a , DC 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under DC 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. The words "slight," "moderate" and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Thus, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation or instability, or limitation of motion, separate ratings for such manifestation may be assigned. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 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. 38 C.F.R. § 4.71a , DC 5263 provides for a 10 percent rating for genu recurvatum, when acquired, traumatic, with weakness and insecurity in weight-bearing which is objectively demonstrated. 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 DC 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 DCs 5003 and 5257. Subsequently, VAOPGCPREC 9-98 further explained that if a Veteran has a disability rating under DC 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 DC 5260 for limitation of flexion of the knee and DC 5261 for limitation of extension of the knee may be assigned). Factual Background The Veteran asserts his service-connected right and left knee disabilities warrant a higher disability rating. During a January 2009 VA examination, the Veteran complained of continuous pain which is slightly worse with ambulation. He also complained of occasional locking, instability, and swelling. He reported that because of his symptoms, he has significant stiffness and difficulty sleeping. Aggravating factors include activity in general as well as prolonged standing and weather change. He denied flare-ups. Upon physical examination, the Veteran had very minimal range of motion. He could only extend the knee to 10 degrees as he cannot fully extend the knees and he could only flex the knees to 35 degrees. The examiner was unable to tell if the Veteran was putting forth significant effort on examination. There was no evidence of additionally limited motion following repetitive use. However, again, the examiner noted his range of motion was very limited. There was no significant crepitus and his joints were not warm, swollen, red, or hot. He was tender diffusely in the bilateral knees and right ankle, but his tenderness did not localize to any specific region. He had bilateral normal anterior drawer test, posterior drawer test, McMurray test, and Lachman test. His knees were stable to varus and valgus stressing. X-ray testing of the knees revealed slight patellar calcification with minimal osteophytosis, but otherwise, the joints paces were maintained. The diagnosis was degenerative joint disease of the bilateral knees. The examiner noted that the Veteran's very limited range of motion was somewhat out of proportion to the rest of his examination, as well as his x-ray abnormalities. In a January 2009 statement, the Veteran's wife reported the Veteran has difficulty riding long distances in a vehicle due to pain and discomfort. He also has not been able to enjoy family activities, intimacy, and regular normal life events. In an April 2009 statement, the Veteran reported that his knees have continuously deteriorated over the past three years. The Veteran complained of constant pain which is almost unbearable most of the time. During a January 2010 examination for Social Security Administration (SSA) disability purposes, the examiner noted the Veteran is able to ambulate effectively. He was slowly, but he is able to carry out activities of daily living as far as his ability to walk. The Veteran described his pain as a stabbing sensation. He reported the pain is at time greater than others. The pain was also described as a chronic dull ache for long periods of time. He reported problems with walking fast or going up and down stairs. He still drives, but for short periods of time due to pain. He reported his right leg gave way, so he ordered a walking cane. He takes medication. He is a minister and he does preach on Sunday. He was able to sit and preach last Sunday. The examiner noted that while in a sitting position his knees were flexed to 90 degrees with no obvious pain. Yet, when he was placed in supine position, the least effort to attempt to move his knees was met with resistant and apparent pain. There was voluntary muscle resistance against any effort at getting good accurate range of motion. The examiner stated he could only get range of motion while the Veteran was in the siting position. There was no effusion in the joints, instability of the joints, swelling, deformity, or flexion contractures. During a March 2010 VA examination, the Veteran reported bilateral knee pain present all day, every day. He also complained of locking, instability, and swelling of both knees. He denied flare-ups stating that his symptoms are severe and present at all times. He reported he uses a forearm crutch to aid in ambulation. Upon examination, the examiner noted his was unable to fully extend his knee to zero degrees as he only had extension to 30 degrees with flexion in each knee to 50 degrees. He had pain throughout the entire range of motion which was not additionally limited following repetitive use on examination. The examiner noted the Veteran did not appear as if he was putting forth appropriate effort on the knee portion of this examination. He was tender to palpation everywhere that was touched around the knee and the amount of pain he was experiencing was out of proportion to the amount of palpation applied, as well as other objective findings. There was no knee warmth, redness, swelling, or crepitus. He had normal anterior drawer test, posterior drawer test, McMurray's test, and Lachman's test. Each knee was stable to varus and valgus stressing. X-ray testing of the knees revealed very minimal osteophyte development of the patellae and, otherwise, the joints spaces were maintained. The diagnosis was mild degenerative joint disease of the bilateral knees. The examiner stated that, again, his severe range of motion abnormalities are out of proportion to other objective findings on examinations and x-ray. For example, he only has knee range of motion from 30 to 60 degrees despite there being no other objective abnormalities and his plain films of his knees only show mild degenerative joint disease and patellar purring and his joint spaces are maintained. In a June 2010 letter, the Veteran's wife stated the Veteran has chronic pain in his knees. She stated he is unable to take long trips without severe pain and discomfort in his knees. He has to rely on the aid of a cane, which slows him down. In a September 2010 letter, Dr. H. stated that the Veteran is unable to do normal activities involving motion or activity and unable to live without daily pain. During a January 2011 VA examination, the Veteran reported his bilateral knee pain, which occurs four to five day a week, is "off the charts." He stated it is aggravated by cold weather and activity. The Veteran complained of giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, locking episodes several times a week, and repeated effusions. He denied dislocation, inflammation, and flare-ups of joint disease. The Veteran reported he is unable to stand for more than a few minutes and unable to walk more than a few yards. His gait was noted as antalgic with poor propulsion. Upon physical examination, the examiner noted subpatellar tenderness and heavy guarding limited the examination. The examiner noted no crepitation, no instability, and no meniscus abnormality. Range of motion testing showed flexion to 30 degrees and extension to zero degrees in both knees. There was additional pain following repetitive motion, but no additional limitation of range of motion. The examiner reported that range of motion testing was limited due to heavy guarding. The examiner opined that it is likely that these measurements are inaccurate. The Veteran was able to achieve at least 60 degrees of motion in each knee when getting up from a sitting position. X-ray testing of the knees revealed slight patellar calcification with minimal osteophytosis, but otherwise, the joints paces were maintained. During a July 2016 Board hearing, the Veteran testified his knees have worsened over the years and continue to have pain and stiffness. During a February 2017 VA examination, the Veteran complained of flare-ups with frequent severe pain. Upon physical examination, the examiner noted the Veteran's bilateral knees showed range of motion limited from zero to 10 degrees. The examiner noted pain on examination that causes functional loss. The examiner reported active and passive range of motion was identical when testing. The examiner reported pain was noted with passive range of motion greater than 10 degrees flexion. Flexion bilaterally while sitting was noted at 90 degrees. The examiner also noted pain on weight bearing and localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing on both knees without additional functional loss or range of motion after three repetitions. The examiner reported he could not say without speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time as it was not witnessed. Additional factors contributing to disability include pain with range of motion. Muscle strength testing was normal, and there was no evidence of atrophy. The examiner reported no history of lateral instability or recurrent subluxation. Upon joint stability testing, there was no evidence of joint instability. The examiner noted the Veteran has "shin splints" but it does not affect the range of motion of his knee. There was no evidence of a meniscus condition. VA and private treatment records include complaints of knee pain and treatment including medication. In a December 2010 VA progress note, the Veteran reported he is completely sedentary due to his physical limitations. Analysis In evaluating the medical evidence of record, the Board finds that a rating higher than the assigned 40 ratings for the right and left knee disabilities based on limitation of extension and 10 percent ratings for the right and left knee disabilities based on limitation of flexion is not warranted. The Veteran asserts his right and left knees show limited flexion warranting a disability rating in excess of the currently assigned 10 percent disability rating; however, the Board finds they do not. Under Diagnostic Code 5260, a higher 20 percent rating is warranted with flexion limited to 30 degrees. The Board recognizes that the January 2011 VA examination showed flexion limited to 30 degrees and the February 2017 VA examination showed flexion limited to 10 degrees. However, the January 2011 VA examiner specifically indicated that the measurements were likely inaccurate as the Veteran was able to achieve at least 60 degrees of motion in each knee when getting up from a sitting position. Furthermore, the February 2017 VA examiner noted the Veteran was able to flex to 90 degrees while sitting. As such, the Board finds these examination findings are not adequate for VA rating purposes and higher disability ratings for limitation of flexion of the right and left knees under Diagnostic Code 5260 are not warranted. Additionally, the Board recognizes the Veteran's right and left knees show limited extension; however, the bilateral knee extension is not limited enough to warrant disability ratings in excess of the currently assigned 40 percent ratings. Under Diagnostic Code 5261, a higher 50 percent rating is warranted with extension limited to 45 degrees. In this case, the VA examination reports also show right and left knee extension limited to, at worst, 30 degrees. As such, higher disability ratings for limitation of extension of the right and left knees under Diagnostic Code 5261 are not warranted. As for any separate compensable rating for knee instability, while the Veteran had complaints of instability, the medical evidence consistently shows that all joint stability testing in the right and left knees were normal. In this regard, the record, to include the examiner's statements, indicates discrepancy between the level of impairment reported by the Veteran and that objectively observed. The most recent examiner referenced the activities documented in the record as indicative of greater functional ability then asserted by the Veteran. Considering all the evidence of record, due to these discrepancies and as examiner has expertise to determine whether a joint is the cause of instability, the Board finds the examiner's findings to be the most probative evidence of record. Therefore, separate compensable ratings are not warranted under Diagnostic Code 5257. In considering whether additional compensable ratings might be assigned for the service-connected right and left knee disabilities under other diagnostic codes, there is no history of dislocated semilunar cartilage; so a rating under Diagnostic Code 5258 is not warranted. There also is no history of knee surgery, so a rating under Diagnostic Code 5259 pertaining to removal of symptomatic semilunar cartilage, also does not apply. In addition, there is no evidence of ankylosis of the left or right knee to warrant a rating under Diagnostic Code 5256. The evidence shows that the Veteran has complained of painful motion of the right and left knees. Other than limitation of motion and some additional pain, there was not shown to be any additional limitations due to repetitive use of the right and left knee. Accordingly, consideration of other factors of functional limitation does not support the grant of higher ratings for the right and left knee disabilities. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, the examiner indicated there was pain on passive motion and there was no pain on nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has fully considered the evidence of record regarding functional impairment, to include the question of whether additional testing upon remand may lead to evidence that would support greater ratings, to include when considering the assertions regarding flare-ups. After careful review of the evidence, to include the evidence of discrepancy between observed range of motion when not in a testing situation and that when in a testing situation, the Board finds that a remand would not serve a useful purpose and that the current ratings adequately contemplate for the severity of the service-connected disabilities. The Veteran is competent to report symptoms associated with his right and left knee disabilities. However, as a layperson, lacking in medical training and expertise, he cannot provide a competent opinion on a matter as complex as the severity of the clinical manifestations of his right and left knee disabilities and his views are of limited probative value regarding the specific findings required to appropriately rate the knee disabilities in appellate status. In the determinations and evaluation of the evidence of record, the Board fully considered the Veteran's lay testimony in light of the medical evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). B. Right Ankle Factual Background The Veteran asserts he has a right ankle disability that warrants a disability rating in excess of the currently assigned 20 percent disability rating. During an April 2008 VA joints examination, the Veteran complained of daily pain and swelling with a feeling of instability. The examiner noted VA treatment records include a diagnosis of osteoarthritis and treatment with medication. He reported his ankle limits walking and prevents running. He complained of activity related flare-ups. He denied wearing any type of brace. He reported he can stand for a maximum of 15 minutes, and walk a mile on level ground with ankle pain. Upon physical examination, the Veteran lacked 5 degrees of dorsiflexion to the neutral position. He could plantar flex to 45 degrees on the right, and inversion and eversion were 5 degrees respectively at the right ankle. There was tenderness over the medial and lateral malleoli. The ankle was stable to the drawer test, but the Veteran had difficulty standing on tiptoes. X-ray testing showed a mild degree of soft tissue swelling. A cyst was noted in the distal fibula, but no other abnormality was documented. The diagnosis was chronic sprain of the right ankle. During a January 2009 VA examination, the Veteran complained of daily right ankle pain which is slightly worse on ambulation. He complained of occasional locking, instability, and swelling. He reported significant stiffness and difficulty sleeping. Aggravating factors included activity in general as well as standing and weather changes. He denied flare-ups. He had dorsiflexion to 5 degrees, plantar flexion to 10 degrees and he was unable to participate in any inversion or eversion whatsoever because of the pain was so severe according to him. He was able to minimally range his right ankle without change in his range of motion or level of pain. Therefore, the range of motion as measured above in the right ankle were not additionally limited following repetitive use on this examination. The examiner stated he was unable to tell if the Veteran was putting forth significant effort and cannot appreciate why his range of motion was so limited. There was no significant crepitus on examination and his joints were not warm, swollen, red, or hot. He was tender diffusely in the right ankle but this tenderness did not localize to any specific region. His right ankle had a stable ligamentous examination with normal strength. Plain films of the right ankle revealed no fracture, and that there was a slight distal fibular lucency, possibly representing previous trauma and early degenerative change, but otherwise without significant abnormality. The diagnosis was mild degenerative joint disease of the right ankle. In an April 2009 statement, the Veteran reported worsening ankle pain. During a January 2011 VA general medical examination, the Veteran complained of giving way, instability, pain, stiffness, weakness, decreased speed of joint, locking episodes, effusions, and tenderness. He denied flare-ups. He reported he is unable to stand for more than a few minutes and unable to walk more than a few yards. Upon physical examination, the examiner noted tenderness and heavy guarding which limited the examination. There was no evidence of instability or tendon abnormality. Dorsiflexion was limited to 10 degrees and plantar flexion limited to 20 degrees. There was objective evidence of pain with active motion. The examiner noted that due to the heavy guarding, it is likely that the measurements are inaccurate. X-ray testing showed no acute fracture-dislocation, no joint space abnormality, and no change since previous examination. The examiner noted a diagnosis of residuals of right tibia-fibula fracture with limited range of motion. During a July 2016 Board hearing, the Veteran testified that his ankles give out and he has daily pain. During a February 2017 VA examination, the examiner noted a diagnosis of right soft tissue swelling. The Veteran complained of flare-ups with severe frequent pain. Upon range of motion testing, the examiner reported dorsiflexion to 5 degrees and plantar flexion to 10 degrees. Pain was noted on examination and causes functional loss. There was no evidence of pain on weight bearing. There was evidence of localized tenderness over anterior aspect of the right ankle. Repetitive use testing showed no additional loss of function. The examiner reported he could not say without speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time as it was not witnessed. Additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc.; instability of station; disturbance of locomotion; interference with sitting; and, interference with standing. Although joint instability was suspected, anterior drawer and talar tilt tests indicated no laxity compared to the other side. The examiner noted the Veteran consistently uses a Canadian crutch and occasionally uses a walker for further distances. Analysis Diagnostic Code 5271 pertains to limited motion of the ankle. That code provides a rating of 10 percent for "moderate" limitation of motion, and a maximum rating of 20 percent for "marked" limitation of motion. 38 C.F.R. § 4.71a. The terms "moderate" and "marked" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (2017). The normal ranges of motion of the ankle are 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. According to VA's M21-1 Adjudication Procedures Manual, an example of moderate limitation of ankle motion is less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion, while an example of marked limitation is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. See M21-1, Part III, Subpart IV, 4.A.3.o, Moderate and Marked LOM of the Ankle (2017). The Veteran's right ankle disability is currently rated as 20 percent disabling under Diagnostic Code 5271. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. This is the highest available rating under this diagnostic code. As a higher rating is not available under Diagnostic Code 5271, the Board will first consider the applicability of Diagnostic Code 5270. Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees warrants a 20 percent rating. If ankylosed in plantar flexion between 30 degrees and 40 degrees or in dorsiflexion between 0 degrees and 10 degrees, a 30 percent rating is warranted. If ankylosed in plantar flexion at more than 40 degrees; in dorsiflexion at more than 10 degrees; or with abduction, adduction, inversion, or eversion deformity, a 40 percent rating is warranted. 38 C.F.R. § 4.71a. As indicated above, there is no evidence that the Veteran's right ankle was ankylosed at any time during the appeal period. As such, Diagnostic Code 5270 does not warrant a disability rating in excess of 20 percent. The Board also considered the applicability of Diagnostic Code 5262. Under Diagnostic Code 5262, a 10 percent disability rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent disability rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent disability rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability; and a maximum schedular 40 percent disability rating is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. As noted above, in order to warrant an increased 30 percent disability rating under Diagnostic Code 5262, the Veteran's right ankle disability would have to result in malunion of the tibia and fibula with marked knee or ankle disability; however, the probative evidence of record indicates there is no malunion of the tibia and fibula documented. As such, Diagnostic Code 5262 does not warrant a disability rating in excess of 20 percent. The Board notes that as the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, DeLuca and the cited regulations are not for application. The evidence does not indicate that this is ankylosis or disability that is tantamount to ankylosis. The evidence of record is sufficient to makes this determination, to include when considering functional impairment. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial evaluation in excess of 40 percent for limitation of extension of the left knee is denied. Entitlement to an initial evaluation in excess of 40 percent for limitation of extension of the right knee is denied. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee is denied. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee is denied. Entitlement to a rating in excess of 20 percent for residual limitation of motion of the right ankle status post distal tibiofibular area fracture is denied. REMAND The Veteran asserts he has a left ankle disorder secondary to his service-connected right ankle and bilateral knee disabilities. The Board remanded the claim in December 2016 for a VA examination and opinion. The Veteran underwent a VA examination in February 2017. The VA examiner determined the Veteran's left ankle disorder is less likely than not incurred in service or aggravated by service connected disability as there is nothing in the current available medical literature that supports the claim. The Board finds this opinion inadequate. It fails to provide an adequate rationale given the Veteran's complaints as well as objective findings of an antalgic gait. As such, the Board finds a VA addendum opinion is necessary. The Veteran also asserts that service connection for erectile dysfunction is warranted as secondary to either pain medication to treat service-connected disabilities or secondary to his service-connected psychiatric disability. The Board notes that although a VA opinion addressed the Veteran's first contention, there is no opinion which addresses whether the Veteran's erectile dysfunction is caused or aggravated by his service-connected psychiatric disorder. As such, the Board finds a VA opinion is necessary. The issue of entitlement to a TDIU is intertwined with the above claims. Accordingly, the case is REMANDED for the following action: 1. Obtain additional VA opinions to answer the following questions: a. Is it at least as likely as not (50 percent or greater) that a left ankle disorder either began during service or was otherwise caused by his military service? b. If not, is it at least as likely as not that the Veteran's left ankle disorder was caused or aggravated by the Veteran's service-connected disabilities to include right ankle and bilateral knee disabilities? The examiner should address the significance, if any, of the fact that a January 2011 VA examination report indicated the Veteran walked with an antalgic gait. c. Is it at least as likely as not (50 percent or greater) that the Veteran's erectile dysfunction is caused or aggravated by his service-connected psychiatric disability? 2. Then, readjudicate the claims on appeal, to include entitlement to TDIU prior to November 6, 2008. If any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs