Citation Nr: 1808996	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  11-31 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee prior to March 5, 2015.

2. Entitlement to a rating in excess of 30 percent for status post left knee total replacement from May 1, 2016.

3. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis, right ankle and right foot prior to August 8, 2014, and from October 2, 2014.

4. Entitlement to a compensable rating for degenerative arthrosis right little finger, distal interphalangeal (DIP) joint.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Kelly A. Gastoukian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1980 to September 1983, and from January 1986 to April 1986.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In July 2017, the Board remanded to schedule the Veteran for a hearing before the Board; however, later the same month the Veteran withdrew his request for such hearing.

The Board notes that additional evidence pertaining to the Veteran's status post left knee total replacement, to include VA treatment records and examination, was added to the record after the issuance of a December 2016 statement of the case. Although the Veteran has not waived initial agency of original jurisdiction (AOJ) consideration this additional evidence, he is not prejudiced by the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The AOJ will have opportunity to review the additional evidence received on remand.

The issue of entitlement to a rating in excess of 30 percent for status post left knee total replacement is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.




FINDINGS OF FACT

1. Prior to March 5, 2015, the Veteran's degenerative joint disease of the left knee was manifested by subjective complaints of pain and limitation of motion, without additional functional loss due to pain, weakness, incoordination, fatigue, or other symptoms so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, or ankylosis, dislocation or removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum.

2. From January 14, 2010, to March 4, 2015, the Veteran's left knee disability was manifested by pain, mild swelling, popping, clicking, instability and giving way.

3. For the entire appeal period, the Veteran's right ankle disability was manifested by marked limitation of motion; there was no evidence of ankylosis.

4. The Veteran's right fifth finger with degenerative arthrosis, DIP joint is not so severely impaired as to be considered analogous to amputation of the finger, nor does it result in limitation of motion of other digits or interfere with overall function of the hand.


CONCLUSIONS OF LAW

1. Prior to March 5, 2015, the criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Code 5010-5260 (2017).

2. From January 14, 2010, to March 4, 2015, the criteria for entitlement to a separate disability rating of 20 percent, but no higher, for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Code 5257 (2017).

3. The criteria for an initial 20 percent disability rating for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.71a, Diagnostic Code 5271 (2017).

4. The Veteran's right fifth finger disability was properly evaluated under the provisions of Diagnostic Code 5227, which provides only a noncompensable disability rating for impairment of the little finger. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5227 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Left Knee

Increased Rating Prior to March 5, 2015

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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 

Where there is a question as to which of two evaluations shall be applied, 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 benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).

Further, in claims for higher ratings for musculoskeletal disabilities, where the Veteran has a noncompensable rating and complains of pain on motion, he may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's service-connected degenerative joint disease of the left knee is currently evaluated under the provisions of 38 C.F.R. § Diagnostic Code 5257-5260, which pertains to lateral instability or recurrent subluxation and limitation of flexion, respectively. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In January 2017, the AOJ granted service connection for moderate lateral instability of the left knee, which is currently evaluated under the provisions of 38 C.F.R. § Diagnostic Code 5257.

Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Plate II, indicates that normal flexion of the knee is 140 degrees and normal extension of the knee is zero degrees.

Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. 

Recurrent subluxation or lateral instability can be rated as slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Evaluations for knee impairment can also be assigned due to ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis of the left knee, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum, these diagnostic codes are not applicable and will not be further discussed. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5662, 5263 (2017).

The preponderance of the evidence shows that throughout the appeal period, the Veteran's left knee disability has been manifested by varying degrees of pain, decreased, painful motion, and instability. See VA treatment records dated January 2010, May 2010, October 2012, January 2015 and June 2013 VA examination report. 

With respect to limitation of motion, the preponderance of the evidence shows that the Veteran has demonstrated extension ranging from zero to eight degrees, with varying degrees of flexion from 40 to 115 degrees shown throughout the appeal. See June 2009 and June 2013 VA Examinations, and May 2010 and January 2015 VA Treatment Records. Despite the consistent evidence of painful, limited motion, the evidence does not reflect that his pain (or any other symptoms, such as lack of endurance or fatigability) results in any additional functional loss in his range of motion other than as reflected by the currently assigned rating of 10 percent for his left knee based upon the loss of range of motion. 

With respect to subluxation and instability, the evidence shows the Veteran has variously reported continued instability. See January 2010 Private Treatment Record; May 2010 Notice of Disagreement; November 2011 Substantive Appeal; and June 2013 VA Examination. Additionally, the evidence shows that throughout the appeal period the Veteran has used a brace on his left knee. Nevertheless, the objective evidence has varied regarding the nature and severity of instability throughout the appeal. In the June 2009 VA examination and, more recently in a January 2010 private treatment record and a May 2010 VA treatment record, there was no objective evidence of joint or ligamentous instability, as all stability tests were normal. However, an October 2012 VA treatment record shows medial joint laxity and a positive Lachman test. A June 2013 VA examination shows medial-lateral instability of the left knee.

Turning to the merits of the bilateral knee arthritis claims, the Board notes, at the outset, that the initial, 10 percent rating assigned under Diagnostic Code 5257-5260 was awarded based upon evidence of painful, limited motion of the left knee joint due to traumatic arthritis. The Board has considered whether a rating higher than 10 percent is warranted based upon limitation of motion under Diagnostic Codes 5260 and 5261; however, the preponderance of the evidence shows the Veteran has demonstrated extension from zero to eight degrees, which is noncompensable under Diagnostic Code 5261, as there is no evidence of extension limited to 10 degrees or more. Likewise, the Board finds the preponderance of the evidence shows that the Veteran's range of motion in flexion is limited to no less than 40 degrees, which warrants a 10 percent rating under Diagnostic Code 5260. Therefore, a higher, or even compensable, disability rating is not warranted under Diagnostic Codes 5260 and 5261 based upon the evidence of record. 

In addition, other than decreased, painful motion, there is no lay or medical evidence of additional functional loss or impairment throughout the appeal period upon usage of the left knees. In this regard, the Veteran has not reported flare-ups of pain. Moreover, the June 2013 VA examiner determined that the Veteran's functional loss and impairment included painful movement. However, the other objective evidence of record, including the VA examination reports, does not contain evidence of additional functional limitation due to fatigability, weakness, lack of endurance, or incoordination. Additionally, the Board finds that any additional functional impairment experienced by the Veteran is contemplated by the disability ratings currently assigned to his left knee arthritis disability. Indeed, the Board finds that the difficulty walking, climbing stairs, and completing activities of daily living, is adequately compensated by the separate 10 percent ratings currently assigned for painful, limited motion caused by his arthritis disability. Therefore, the Board finds that an increased rating is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45, DeLuca, supra, or Burton, supra. 

Turning to the merits of the left knee laxity claim, the Board notes there are subjective reports of instability in the joint and the Veteran has consistently used a left knee brace throughout this appeal. Moreover, there has been objective evidence of mild ligamentous and joint instability during this appeal. While the Veteran's left knee instability has varied throughout the appeal, the Board finds that, given the consistent, subjective reports of instability, occasional, objective evidence of ligamentous and joint instability, and the Veteran's consistent use of a left knee brace, the Board finds that the Veteran's left knee laxity and instability more nearly approximate a moderate disability, which warrants a 20 percent rating under Diagnostic Code 5257. 

A rating higher than 20 percent is not warranted, however, because severe instability or laxity in the bilateral knees is not shown in the preponderance of the evidence. Indeed, as noted, in June 2009 and, more recently in January 2010 and May 2010, there was no objective evidence of joint or ligamentous instability, as all stability tests were normal. Therefore, the Board finds that the Veteran's left knee instability is no more than moderate and, as such, warrants no more than a 20 percent rating for left knee disability under Diagnostic Code 5257.

In evaluating all periods on appeal, the Board has considered the Veteran's lay statements regarding the functional impact of his left knee disability. The Veteran is competent to report his own observations with regard to the severity of his left knee disability, including reports of pain, swelling, and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds his statements to be credible and consistent with the ratings assigned. To the extent he argues that his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions.

In sum, the preponderance of the evidence is against finding for any higher ratings than 10 percent from the beginning of the appeal period to January 14, 2010. An initial rating of 10 percent, but no higher, for lateral instability from January 14, 2010, to March 4, 2015, is warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against finding for any higher ratings than those now assigned, that doctrine is not applicable. 38 U.S.C. § 5107(b); See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

II. Right Ankle

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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Where there is a question as to which of two evaluations shall be applied, 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 benefit of the doubt will be resolved in the appellant's favor. 38 C.F.R. § 4.3.

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. 
§ 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994).

In view of the number of atypical instances 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 will, however, be expected in all instances. 38 C.F.R. § 4.21.

In determining the degree of limitation of motion, the provisions of 38 C.F.R. 
§§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 

Disability 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, 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." Id., quoting 38 C.F.R. § 4.40. 

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 

However, consideration of 38 C.F.R. § 4.40 and § 4.45, and the accompanying case law, are not for application when a Veteran's disability is already rated at the maximum rating for limitation of motion. Johnston v. Brown, 10 Vet. App. 80 (1997). 

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability.

Traumatic arthritis is rated under the diagnostic code pertinent to degenerative arthritis. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis is noncompensable under the appropriate diagnostic code, 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. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under Diagnostic Code 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations.

The Veteran's service-connected right ankle disability is currently rated as 10 percent disabling pursuant to Diagnostic Code 5010-5271, which pertains to traumatic arthritis and limited motion of the ankle, respectively. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

Normal ankle dorsiflexion is from 0 to 20 degrees and normal plantar flexion is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. 

Diagnostic Code 5270 pertains to ankylosis of the ankle and provides for a 20 percent rating where there is ankylosis of the ankle in plantar flexion, less than 30 degrees. A 30 percent rating is warranted where there is ankylosis of the ankle in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between zero degrees and 10 degrees. A 40 percent rating is warranted where there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at 91).

Diagnostic Code 5271 pertains to limited motion of the ankle, and provides for a 10 percent rating where there is moderate limitation of ankle motion and a 20 percent rating where there is marked limitation of ankle motion.

Diagnostic Code 5272 pertains to ankylosis of the subastragalar or tarsal joint, and provides for a 10 percent rating where such is in good weight-bearing position and a 20 percent rating where such is in poor weight-bearing position.

Diagnostic Code 5273 pertains to malunion of the os calcis or astragalus, and provides for a 10 percent rating where there is moderate deformity and a 20 percent rating where there is marked deformity.

Diagnostic Code 5274 provides for a 20 percent rating for an astragalectomy.

Evidence relevant to the severity of the Veteran's right ankle disability includes VA examination reports dated in October 2009, February 2015 and August 2016. Additionally, VA treatment records during the appeal period document complaints of right ankle pain, subluxation, and limitation of motion.

During the October 2009 VA examination, the Veteran reported 8/10 pain and weakness. Stiffness, weakness, giving way, instability, pain, decreased speed of joint motion, and tendon slackness were present. He described flare-ups occurring once every two months, which lasted a couple days and were moderate to severe. During flare-ups he reported 65 percent additional limitation of motion or functional impairment. 

On physical examination, he walked with an antalgic gait, with intermittent but frequent use of a cane and brace. Bony joint enlargement and tenderness were present. Range of motion testing revealed dorsiflexion from 0 to 16 degrees. Plantar flexion was from 0 to 35 degrees. There was no objective evidence of pain with active motion. There was no additional loss of motion after repetitions. There was no ankylosis. X-rays showed no evidence of acute abnormality. There were stable degenerative changes. 

In May 2010, the Veteran reported constant use of an ankle brace because his ankle gave way and was weak and unstable. He further reported he was unable to climb stairs and the distance he could walk was severely limited.

A July 2011 VA treatment record showed the right ankle extended only to about neutral, and plantar flexion was moderately limited.

A May 2012 radiology report showed remote bimalleolar fracture with overlying soft tissue swelling that suggested continued instability.

An October 2012 VA treatment record showed limitation in walking distance to 100-200 yards. He also noted increased swelling.

A November 2012 VA treatment record showed complaints of daily pain that was worse with ambulation. On physical examination the range of motion was five degrees short of neutral in dorsiflexion. There was limited subtalar joint motion. There was tenderness and evidence of subluxation. He was noted to walk with a limited toe-off gait and his hind foot was noted to be neutral.

A December 2012 VA treatment record showed the Veteran complained of right foot pain. On physical examination, there was decreased sensation over the tib nerve. There was tenderness over the sinus tarsi, peroneal tendons, and anterior talofibular ligament. The talar tilt test had more laxity than on the left foot. There was minimal subtalar motion. There was painful ankle range of motion to five degrees of dorsiflexion and 30 degrees of plantarflexion.

In August 2014 the Veteran underwent right ankle arthroscopic extensive debridement and open debridement of peroneal tendons, and was granted a temporary total 100 percent rating from August 8, 2014, to October 1, 2014. Therefore, an increased rating for the time period from August 8, 2014, to October 1, 2014, is moot. 

The Veteran was afforded another VA examination in February 2015. The Veteran did not report any flare-ups or functional impairment. On physical examination, range of motion testing revealed dorsiflexion from 0 to 5 degrees and plantar flexion from 0 to 20 degrees. The range of motion contributed to functional loss through an altered stride. Pain was noted on examination, but it did not result in functional loss. There was evidence of pain with weight-bearing. The ankle was very tender to palpation over both malleoli and inferiorly to both. The Veteran was able to perform repetitive use testing, which did not result in additional loss of function or range of motion. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use. 
Additional factors that contributed to disability were less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength testing was 5/5 for plantarflexion and 4/5 for dorsiflexion. Muscle atrophy and ankylosis were absent. Ankle instability was suspected. Findings were negative for shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus or talectomy. The Veteran had constant use of an ankle brace and cane to assist in pain control while walking and working. X-rays revealed degenerative arthritis.

The Veteran was also afforded a VA examination for his foot in February 2015. The Veteran complained of plantar surface pain from the ball of his foot to his heel for two years. The examiner diagnosed foot pain. The Veteran did not report flare-ups or functional loss. He had extreme tenderness of plantar surfaces on his right foot. There was pain on weight-bearing. The pain noted on examination did not contribute to functional loss. The examiner explained that the soreness was mild to moderate, but did not cause functional problems. The examiner also noted that the Veteran was tender to palpation at the plantar distal metatarsal heads, there was mild pain in the arch, and pain on palpation of the heel. The examiner then diagnosed plantar fasciitis and opined that it was at least as likely as not that plantar fasciitis was caused by or the result of the right ankle disorder due to altered range of motion and altered stride.

The Veteran was afforded another VA examination in August 2016. The Veteran continued to report pain, limited range of motion, and instability. He did not report flare-ups, but did report functional loss in the form of an inability to bend or stoop. On physical examination, range of motion testing revealed dorsiflexion from 0 to 15 degrees and plantar flexion from 0 to 20 degrees. No pain was noted on examination. There was evidence of pain with weight-bearing. There was objective evidence of mild localized tenderness or pain on palpation of the lateral ankle evidence by the Veteran grimacing. He was able to perform repetitive use testing, which did not result in additional loss of function or range of motion. The examiner noted that pain significantly limited functional ability with repeated use per the Veteran's report of increased pain and decreased range of motion. Additional factors that contributed to disability were swelling and disturbance of locomotion. Muscle strength testing was 4/5 for plantarflexion and 4/5 for dorsiflexion. Muscle atrophy and ankylosis were absent. Ankle instability was suspected and there was laxity compared with the opposite side. Findings were negative for shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus or talus or talectomy. The Veteran had constant use of an ankle brace and cane due to his right ankle arthritis. X-rays revealed degenerative arthritis. The examiner noted the right ankle disability impacted the Veteran's ability to perform occupational tasks as he would be limited with stooping and ambulation due to weakness and decreased range of motion in the right ankle.

Based on the foregoing, and affording the Veteran the benefit of the doubt, the Board finds that the criteria for a 20 percent rating under Diagnostic Code 5271 are met. In this regard, the October 2009, February 2015 and August 2016 VA examinations document severe limitation of motion with respect to dorsiflexion.

However, a rating in excess of 20 percent is not warranted for the Veteran's right ankle disability. In this regard, the Board notes that a 20 percent rating is the maximum allowable rating under Diagnostic Code 5271. Here, there are no other applicable diagnostic codes. In particular, there is no evidence of functional impairment comparable to ankylosis, including of the subastragalar or tarsal joint, and no evidence of malunion of os calcis or astragalus, or astragalectomy; the Veteran is therefore not entitled to a higher or separate rating under 5262, 5273 or 5274.

In reaching the above conclusion, the Board has not overlooked the Veteran's statements and testimony and with regard to the severity of his service-connected ankle disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing pain and weakness, or witnessing difficulty with movement. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Lay evidence was provided by the Veteran through submitted statements and during the course of his VA examinations. 

However, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise to diagnose or observe, which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person, the Board has accorded greater probative weight to objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports. See Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).

III. Right Fifth (Little) Finger

Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, 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.

A request for an increased rating must be viewed in light of the entire relevant medical history. 38 C.F.R. § 4.1. However, the Court has held that, where, as here, entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye toward the lack of usefulness of the body or system in question. 38 C.F.R. § 4.10. A disability of the musculoskeletal system is measured by the effect on ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion in assigning the most accurate disability rating. 38 C.F.R. § 4.40. Although § 4.40 does not require a separate rating for pain, it does provide guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. The Board has a special obligation to provide a statement of reasons or bases pertaining to § 4.40 in rating cases involving pain. Spurgeon v. Brown, 10 Vet. App. 194 (1997).

Disability of the joints is measured by abnormalities of motion, such as limitation of motion or hypermobility, instability, pain on motion, or the inability to perform skilled motions smoothly. 38 C.F.R. § 4.45. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. Under section 4.59, painful motion is considered limited motion even though a range of motion is possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417, 421 (1995).

Historically, the Veteran jammed his right little finger during service, and as a result of a ruptured tendon in his right little finger he was treated with a tendon graft from his forearm. He now has problems with loss of extension and decreased grip strength as a result of ongoing loss of function in the right little finger. There is now degenerative arthrosis in the finger. Service connection for degenerative tendon graft, right small finger was granted in a December 1983 RO decision. The Veteran is now seeking a compensable disability rating for the little finger, asserting that the finger has gotten worse since the 1983 grant of service connection.

The Veteran was afforded a VA examination in June 2009. The Veteran reported loss of extension of the right little finger and decreased grip strength. The examiner noted there was no overall decrease in hand strength, nor decrease in hand dexterity. There was pain and limited motion of the right little finger. He did not report flare-ups. The examiner noted the Veteran's dominant hand was his right hand. The examiner diagnosed mild degenerative arthrosis of the right little finger, DIP joint.

On physical examination, there was objective evidence of pain on active range of motion, limitation of motion, and objective evidence of pain following repetitive motion. There was no additional limitation of motion following repetitive use. There was no amputation, ankylosis, or deformity of one or more digits. There was decreased grip strength and strength of supposition thumb to little finger on the right hand. There was mild resting flexion deformity of the right little finger at the proximal interphalangeal (PIP) joint that was easily reduced to zero with mild pressure into extension. The examiner noted the right little finger disability had no significant effects on his usual occupation, but had a mild effect on chores and sports. 

The Veteran was afforded another VA examination to evaluate his right little finger in December 2013. He reported some fixed flexion of the right fifth finger DIP joint. The examiner noted the Veteran was right hand dominant. The Veteran did not report flare-ups.

On physical examination, the examiner noted there was limitation of motion of the thumb and little finger. There was no gap between the thumb pad and the fingers. There was a gap of less than one inch between the right little fingertip and the proximal transverse crease of the palm, and painful motion began at a gap of less than one inch. There was no additional limitation of motion following repetitive use. The examiner noted functional loss of the right little finger after repetitive use included less movement than normal, excess fatigability, and pain on movement. There was tenderness or pain to palpation on the right side. Right hand grip was normal strength. There was ankylosis of the fifth DIP joint fixed in 30 degrees of flexion. The ankylosis did not result in limitation of motion of other digits or interference with overall function of the hand. There was no functional impact to the Veteran's ability to work.

The Veteran was afforded another examination in August 2016. He reported stiffness in the right small finger. The examiner noted the Veteran was right hand dominant. The Veteran did not report flare-ups or functional loss. The examiner diagnosed right little finger DIP joint degenerative arthrosis.

On physical examination, all digits on the right hand had normal range of motion except the right little finger which had extension to zero degrees  in the metacarpophalangeal (MCP) joint and PIP joint, and extension to 25 degrees in the DIP joint. Right little finger flexion was to 90 degrees in the MCP joint, 55 degrees in the PIP joint, and 40 degrees in the DIP joint. There was no gap between the pad of the thumb and the fingers or between the finger and proximal transverse crease of the hand on maximal finger flexion. The abnormal range of motion did not contribute to functional loss. There was no pain noted on examination. There was no additional limitation of motion following repetitive use. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time; however, the Veteran did report decreased range of motion with repeated use over time. No other factors contributed to disability. Right hand grip was normal strength. There was no muscle atrophy or ankylosis. The examiner noted the right little finger disability did not have a functional impact on the Veteran's ability to perform any type of occupational task.

Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Plate III within 38 C.F.R. § 4.71a depicts the bones and joints of the hand. Motion of the thumb and fingers should be described by appropriate reference to the joints whose movement is limited with a statement as to how near, in centimeters, the tip of the thumb can approximate the fingers, or how near the tips of the fingers can approximate the proximal transverse crease of the palm. 38 C.F.R. § 4.71. 

The Veteran's right little finger is currently rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5227 for ankylosis of the ring or little finger. 
This Code provides for a noncompensable disability rating for favorable or unfavorable ankylosis of the right or little finger. Adjudicators are instructed to also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand. 

However, the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. The rating schedule provides a 20 percent disability rating for amputation of the little finger with metacarpal resection (more than half of the bone lost), and a 10 percent disability rating for amputation of the little finger without metacarpal resection, at the proximal interphalangeal joint or proximal thereto. 38 C.F.R. § 4.71a, Diagnostic Code 5156.

Thus, the highest possible disability rating which could be assigned under law for disability of the little or fifth finger at the level of the proximal interphalangeal joint is 10 percent, IF the resulting functional impairment is so severe as to be analogous to amputation at that level. 

In this case, the Board holds that the Veteran's right hand functional impairment is not so severe as to be analogous to amputation at that level. In reaching this conclusion, we rely mostly upon the report of the June 2009, December 2013, and August 2016 VA examinations. As set forth above, the examiners concluded that the Veteran did not have any limitation in right hand function. They also all opined that the Veteran was not limited in terms of any occupational task. Such a situation cannot be viewed as equivalent to amputation in any way. As such, the preponderance of the evidence is against the award of a compensable disability rating under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5227.


ORDER

A disability rating in excess of 10 percent for degenerative joint disease of the left knee is denied.

An initial 20 percent disability rating for left knee instability from January 14, 2010, to March 4, 2015, is granted.

An initial disability rating of 20 percent, but no higher, for a right ankle disability is granted.

A compensable disability rating for degenerative arthrosis right little finger, DIP joint is denied.


REMAND

The Veteran last underwent VA examination in relation to the current severity of his service-connected left knee in November 2017. However, the November 2017 VA examination did not consider the Veteran's lay statements regarding his severe painful motion, stiffness, and instability of his left knee. In fact, the November 2017 examination focused on the right knee disability, with only left knee findings when specifically requested by the form and without additional explanation for left knee findings. Accordingly, another examination is necessary to assess the current severity of the Veteran's left knee disability.

While on remand, the VA should obtain all outstanding, pertinent private and VA treatment records, to include VA treatment records from July 2017 to the present.

Accordingly, the case is REMANDED for the following action:

1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claim.

2.  Obtain any additional VA treatment records, including those dated from July 2017 to the present.

3.  After conducting the above development, schedule the Veteran for the appropriate VA orthopedic examination in order to assist in determining the current level of severity of the Veteran's service-connected left knee disability. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following:

The VA examiner should report the extent of the left knee disability symptoms (including any related left thigh or left leg symptoms) in accordance with VA rating criteria.

Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the VA examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain.

The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the right and left knees. If 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 extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss.

If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups.

The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion.  In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. 

In addition to range of motion testing, the VA examiner should indicate whether the Veteran has either instability or recurrent subluxation of the left knee, and, if so, indicate whether such symptoms are best described as slight, moderate, or severe. The VA examiner should indicate whether the Veteran has frequent episodes of locking, pain, or effusion in the joint. The VA examiner should also describe the functional impairment caused by the Veteran's left knee disability.  

The VA examiner should consider the Veteran's lay statements that he was in constant pain when he tried to walk, had severe painful motion and stiffness, and had weakness and instability of the left knee for which he had been issued several orthopedic appliances. 

4.  If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

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. §§ 5109B, 7112 (2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs