Citation Nr: 1806873 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-08 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial compensable rating for left ankle sprain. 2. Entitlement to an initial compensable rating for left knee strain. 3. Entitlement to an initial compensable rating for left knee scar. 4. Entitlement to an initial compensable rating for right knee strain. 5. Entitlement to an initial compensable rating for right knee scars. 6. Entitlement to an initial compensable rating for right foot bunion. 7. Entitlement to an initial compensable rating for right hand strain. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from October 2004 to March 2010, to include service in an imminent danger area in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to initial ratings in excess of 10 percent for left ankle sprain, left knee strain, right knee strain, and right foot bunion are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left ankle sprain has manifested with pain. 2. The Veteran's left knee strain has manifested with pain. 3. The Veteran's left knee scar has manifested with a single, painful scar that covers less than 6 square inches and does not affect the head, face, or neck. 4. The Veteran's right knee strain has manifested with pain. 5. The Veteran's right knee scar has manifested with three, painful scars that cover less than 6 square inches and do not affect the head, face, or neck. 6. The Veteran's right foot bunion has manifested with pain. 7. The Veteran's right hand strain has manifested with pain involving multiple groups of minor joints, without ankylosis or incapacitating exacerbations. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for left ankle sprain have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5271 (2017). 2. The criteria for an initial 10 percent rating for left knee strain have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260 (2017). 3. The criteria for an initial 10 percent rating for left knee scar have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.118, Diagnostic Code 7804 (2017). 4. The criteria for an initial 10 percent rating for right knee strain have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260 (2017). 5. The criteria for an initial 20 percent rating for right knee scars have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.118, Diagnostic Code 7804 (2017). 6. The criteria for an initial 10 percent rating for right foot bunion have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5280 (2017). 7. The criteria for an initial 10 percent rating for right hand strain have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Ankle Sprain, Left knee Strain, Right Knee Strain, Right Foot Bunion, Right Hand Strain The Veteran seeks initial compensable ratings for left ankle sprain, left knee strain, right knee strain, right foot bunion, and right hand strain. The Veteran's left ankle sprain is currently rated under Diagnostic Code 5271, which provides a 10 percent rating for moderate limitation of motion and a 20 percent rating for marked limitation. 38 C.F.R. § 4.71a. The Veteran's left and right knee strains are currently rated under Diagnostic Code 5260, which provides a 10 percent rating for flexion limited to 45 degrees, a 20 percent rating for flexion limited to 30 degrees, and a 30 percent rating for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. The Veteran's right foot bunion is currently rated under Diagnostic Code 5280, which provides a 10 percent rating for unilateral hallux valgus if it is operated with resection of metatarsal head. A 10 percent rating is also warranted for severe hallux valgus, equivalent to amputation of the great toe. 38 C.F.R. § 4.71a. The Veteran's right hand strain is currently rated under Diagnostic Codes 5299-5219, on the basis of unfavorable ankylosis of two digits. Here, the Board finds that Diagnostic Code 5003 provides more appropriate and favorable criteria for evaluating the Veteran's hand strain. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld so long as it is supported by explanation and evidence). In this regard, a compensable rating under Diagnostic Code 5219 requires unfavorable ankylosis of two digits. Significantly, there is no lay or medical evidence of favorable ankylosis, let alone unfavorable ankylosis. See, e.g., VA examination (March 2011). Conversely, Diagnostic Code 5003, with its more general criteria, permits a rating based symptoms such as pain, which are present. See, e.g., Substantive appeal (March 2014). Diagnostic Code 5003 provides that a 10 percent rating is warranted for each such major joint group or minor joint group affected by limitation of motion. In the absence of limitation of motion, a 10 percent rating is warranted when arthritis effects two or more major joints or two or more minor joint groups. The next higher rating, 20 percent, is warranted when arthritis effects two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The hand, which includes involvement of the interphalangeal, metacarpal and carpal joints of the upper extremities, is considered a group of minor joints. 38 C.F.R. § 4.45(f). Under 38 C.F.R. § 4.59, at least the minimum compensable rating is warranted for actually painful, unstable, or malaligned joints. "The plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the [Diagnostic Code] under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (holding that the criteria of 38 C.F.R. § 4.59 applies in foot disabilities involving pain such as Diagnostic Code 5280). In this case, the Veteran has reported pain in the bilateral knees, left ankle, right hand, and right foot. See, e.g., VA examination (March 2011); Substantive Appeal (March 2014). In light of the Veteran's competent, credible report of pain in the bilateral knees, left ankle, right hand, and right foot, the Board finds that initial 10 percent ratings are warranted for the Veteran's service-connected left ankle sprain, left knee strain, right knee strain, right foot bunion, and right hand strain. See 38 C.F.R. § 4.59; Southall-Norman, 28 Vet. App. at 354. As to the Veteran's right hand strain, the Board further finds that a rating in excess of 10 percent is not warranted as there is no lay or medical evidence of incapacitating exacerbations, which is required for a 20 percent rating, the next higher rating, under Diagnostic Code 5003. Accordingly, the remaining issue becomes one of entitlement to initial ratings in excess of 10 percent for the Veteran's service-connected left ankle sprain, left knee strain, right knee strain, and right foot bunion. The Veteran is not prejudiced by this action as it is a grant of benefits without any denial of greater benefits. The remaining issues will be addressed further in the remand section. Left and Right Knee Scars The Veteran seeks initial compensable rating for surgical scars of the left and right knees. The Veteran's left knee scar is rated under Diagnostic Code 7804 and his right knee scar is are rated under Diagnostic Code 7805. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two painful or unstable scars. A 20 percent rating is warranted for three or four painful or unstable scars. A 30 percent rating is warranted for five or more painful or unstable scars. Diagnostic Code 7805 indicates that other scars and other effects of scars are to be evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. In March 2011, VA examination revealed one surgical scar on the left knee, which measured 0.5 in x 7.5 in and was not painful. The examiner identified three surgical scars on the right knee, which measured 0.5 cm x 6 cm, 2 cm x 2 cm, and 0.5 cm x 1 cm and were not painful. The Veteran reports that the surgical scars have been painful throughout the pendency of the appeal. See, e.g., Substantive appeal (March 2014). In light of the Veteran's competent, credible report that his scars are painful, the Board finds that an initial 10 percent is warranted for the left knee scar and an initial 20 percent rating is warranted for the Veteran's three, painful right knee scars. The Board finds that higher rating are not warranted under Diagnostic Codes 7800, 7801, 7802, or 7804 as the Veteran's scars do not cover less than 6 square inches or affect the head, face, or neck. ORDER An initial 10 percent rating left ankle sprain is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 10 percent rating left knee strain is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 10 percent rating left knee scar is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 10 percent rating right knee strain is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 20 percent rating right knee scars is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 10 percent rating right foot bunion is granted, subject to the laws and regulations governing the payment of monetary awards. An initial 10 percent rating right hand strain is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND With regard to the service-connected left ankle sprain, left knee strain, right knee strain, and right foot bunion, the Board finds that a new VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted). See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The most recent VA examination, which was conducted in March 2011, does not provide this information. Likewise, VA examination is needed to address functional limitations during flare-ups. Since the March 2011 VA examination, which does not estimate the loss of function during flare-ups, the Veteran has reported occasional increases in symptomatology, such as pain, which is indicative of flare-ups. See, e.g., Substantive appeal (March 2014). Accordingly, upon remand, if the examination is not conducted during a flare-up, the VA examiner will be asked to estimate functional loss during flare-ups based on the Veteran's descriptions of his additional loss of function during flare-ups, information gleaned from his medical records, or discerned other sources available to the examiner. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such information is necessary to adequately understand his additional or increased symptoms and limitations experienced during flares. Id. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the severity and the impact of his service-connected disabilities on his ability to work. 2. Then, arrange for the Veteran to undergo a VA examination to evaluate the current severity of his service-connected left ankle sprain, left knee strain, right knee strain, and right foot bunion. The joints involved must be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner is also to describe e all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups. If the examination is not conducted during a flare-up or after repetition over time, the examiner is to ask the Veteran to describe the additional functional loss he suffers during flares and after repetition over time. The examiner may also utilize information from his medical records or other sources available to the examiner to obtain the needed information. Then, the examiner is to estimate the functional loss (in terms of lost range of motion) based on all the evidence of record. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is to also address the Veteran's reports of instability in the left knee and right ankle. See, e.g., Substantive appeal (March 2014). 3. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs