Citation Nr: 1817306	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  10-10 175	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee.

2.  Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the right knee.

3.  Entitlement to an initial rating in excess of 10 percent for chronic strain of the right ankle.

4.  Entitlement to an initial rating in excess of 10 percent prior to August 21, 2017, and a rating in excess of 20 percent beginning August 21, 2017, for chronic strain of the left ankle.


REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Veteran and C.F., Observer


ATTORNEY FOR THE BOARD

S. Schick, Associate Counsel


INTRODUCTION

The Veteran had active duty service from February 1979 to July 1979, from September 1985 to August 1989, from August 1989 to December 1989, from January 1990 to April 1990, and from October 1992 to December 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the VA Regional Office (RO).

The Veteran had a hearing before the undersigned Veterans Law Judge in March 2017.  A transcript of that proceeding has been associated with the claims file.

In an October 2017 rating decision, the AOJ granted an increased evaluation for chronic strain, left ankle from 10 percent to 20 percent disabling, effective August 21, 2017.  As this was not an award of full benefits sought, the matter remains before the Board as reflected on the title page. 

This appeal was previously remanded in July 2016 and July 2017 and has been returned to the Board for appellate review.

The issue of entitlement to an initial rating in excess of 10 percent prior to August 21, 2017, and a rating in excess of 20 percent beginning August 21, 2017, for chronic strain of the left ankle is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT

1.  Throughout the period on appeal, the Veteran's patellofemoral syndrome of the right knee has been manifested by symptoms no greater than objective findings of pain and swelling, forward flexion limited to 115 degrees, extension of zero degrees, and without ankylosis, instability, locking pain, or effusion into the joint.

2.  Throughout the period on appeal, the Veteran's patellofemoral syndrome of the left knee has been manifested by symptoms no greater than objective findings of pain and swelling, forward flexion limited to 115 degrees, extension of zero degrees, and without ankylosis, instability, locking pain, or effusion into the joint.

3.  The Veteran's chronic strain of the right ankle is shown to have been productive of marked limitation of motion.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 10 percent for patellofemoral syndrome of the right knee are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5099-5024, 5260, 5261(2017)

2.  The criteria for an initial disability rating in excess of 10 percent for patellofemoral syndrome of the left knee are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, DCs 5099-5024, 5260, 5261(2017)

3.  The criteria for an initial disability rating of 20 percent, but no higher, for chronic strain of the right ankle are met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5099-5024, 5270, 5271, 5272, 5273, 5274 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria: Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C. § 1155.  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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).

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. § 4.29.



Bilateral Knees Analysis

The Veteran filed a claim for service connection for bilateral knee patella femoral syndrome.  See April 2008 VA Form 21-526 Veteran's Application for Compensation and/or Pension.  In a November 2008 rating decision, service connection for patellofemoral syndrome, left knee was granted with an evaluation of 10 percent effective January 1, 2008.  The Veteran's bilateral knee disability is currently rated pursuant to DCs 5099-5024, as tenosynovitis.  This disability is rated on limitation of range of motion of affected parts as degenerative arthritis. 

Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71, DCs 5260 and 5261.  Under DC 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 maximum 30 percent rating is warranted for flexion limited to 15 degrees.  Under DC 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. 

For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees.  38 C.F.R. § 4.71a, Plate II.

Turning to the facts of this case, the Veteran was afforded a June 2008 VA examination and the report indicated that the Veteran was diagnosed with bilateral patellofemoral syndrome.  She reported bilateral knee symptoms including pain, weakness, stiffness, swelling, redness, giving way, and lack of endurance.  She reported that she did not have heat, locking, fatigability, or dislocation.  She reported that pain could be physical activity and walking/steps; pain came by itself; pain was relieved by rest and the medication, Motrin; and during pain she limited her function with pain.  She has not had any prosthetic implants of the joint. 

Right knee x-ray findings were within normal limits.  Physical examination of the right knee revealed tenderness and guarding of movement; right knee showed no signs of edema, effusion, weakness, redness, and heat; and right knee had no subluxation.  Examination of the right knee revealed clicking and the right knee had no genu recurvatum, locking pain, or crepitus.  Left knee x-ray findings were within normal limits.  Physical examination of the left knee revealed tenderness and guarding of movement; left knee showed no signs of edema, effusion, weakness, redness, and heat; and left knee had no subluxation.  Examination of the left knee revealed clicking and is no genu recurvatum, locking pain, or crepitus. 

Range of motion testing of the right knee revealed she had flexion of 135 degrees out of 140 degrees.  On the right, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The anterior and posterior cruciate ligaments stability test of the right knee was within normal limits.  The medial and lateral collateral ligaments stability test of the right knee was within normal limits.  The medial and lateral meniscus test of the right knee was within normal limits.  Range of motion testing of the left knee revealed she had flexion of 125 degrees out of 140 degrees and extension of zero degrees out of zero degrees.  On the left the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  The anterior and posterior cruciate ligaments stability test of the left knee was within normal limits.  The medial and lateral collateral ligaments stability test of the left knee was within normal limits.  The medial and lateral meniscus test of the left knee was within normal limits.

November 2008, March 2009, and October 2009 outpatient treatment records revealed that musculoskeletal examination of the Veteran's knees revealed bilateral pain elicited by knee motion; bilateral appearance of the knees was normal; bilateral tenderness on palpitation with no swelling in the suprapatellar region of the knees; no muscle spasm of the knee bilaterally; full range of motion of the knees bilaterally; bilateral knees demonstrated normal movement; no tenderness observed on ambulation of the knees bilaterally; and bilateral knees demonstrated no muscle weakness.  The left knee anterior aspect was tender on palpitation; left knee inferior patella was tender on palpitation; and there was no left knee crepitus of motion.  

June 2009 VA outpatient orthopedic consultation note indicated the Veteran was seen for reports of worsening bilateral knee pain.  She reported it hurt to go up and down steps and she had to stop running.  She reported that her knees do not often want to give out and that they were not necessarily weak.  When standing, she demonstrated 48 degrees of flexion of each knee and reported pain under her knee cap; sitting in a chair, she had about 135 degrees of flexion of each knee; there was rubbing sensation of flexion and extension of each knee like going over a "bump" in the middle of the street; there appeared to be mild swelling of the right knee; the collateral and cruciate ligaments were intact with both knees checked in 30 and 90 degrees of flexion and full extension; there was no patella-femoral compression tenderness; and there was no instability.

The Veteran was afforded a January 2016 VA knee examination and the report indicated that the Veteran did not report flare-ups of the knee and/or lower leg and did not report having any functional loss or functional impairment of the joint or extremity being currently evaluated, including but not limited to repeated use over time.  The examination report indicated that bilateral range of motion was all normal with bilateral flexion from zero degrees to 140 degrees and bilateral extension from 140 degrees to zero degrees.  There was no pain noted in exam; no evidence of pain with weight bearing bilaterally; no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue bilaterally; and there was no crepitus bilaterally.  The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions, bilaterally.  The examiner indicated that she was not being examined immediately after repetitive use over time and examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  The examiner further indicated it was not possible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time.   The veteran did not have ankylosis or muscle atrophy of either knee.  There was no history of recurrent subluxation, bilaterally; no history of recurrent effusion, bilaterally; no joint instability bilaterally; she did not now have nor ever had a meniscus (semilunar cartilage) condition; and she did not have now have or has she ever had "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy).  The Board notes that the Veteran testified that the examiner did not conduct range of motion testing upon January 2016 VA examination.  See March 2017 Board Hearing Transcript. 

The Veteran was afforded an August 2017 VA knee examination for her bilateral patellofemoral syndrome.  The Veteran reported flare-ups described as swelling and reported having functional loss or functional impairment of the knees including but not limited to repeated use over time described as increased pain over time. 

Initial range of motion testing revealed she had bilateral flexion of zero degrees to 140 degrees and bilateral extension of 140 degrees to zero degrees.  Range of motion did not contribute to functional loss, pain was exhibited on flexion, there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, and there was no evidence of pain with weight bearing.

The Veteran was able to perform repetitive use testing with at least three repetitions of each knee and had additional loss of function of range of motion after three repetitions with range of motion after three repetitions showing flexion of zero to 115 degrees bilaterally and extension of 115 degrees to zero degrees bilaterally.  The examination report indicated that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time with pain noted as the factor that caused functional loss bilaterally.  The examiner indicated that the Veteran's bilateral knees were not being examined immediately after repetitive use over time and explained that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time.  

Additional factors noted as continuing to disability bilaterally were described as swelling caused pain decreasing her ability to squat.  She did not have muscle atrophy bilaterally; did not have ankylosis, bilaterally; did not have a history of recurrent subluxation, bilaterally; did not have a history of lateral instability, bilaterally; there was no joint instability, bilaterally; and she did not now have nor ever had a meniscus (semilunar cartilage) condition; and she did not have now have or has she ever had "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy).  She used a brace regularly and a cane occasionally.  The Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to her diagnosed knee conditions. 

Applying the pertinent legal criteria to the facts of this case, the Board finds that, for the entirety of the period on appeal, the most probative evidence is against the Veteran's claim of entitlement to a disability rating in excess of 10 percent for patellofemoral syndrome of the right knee and left knee under DCs 5099-5024, 5260, 5261.  A higher, 20 percent disability rating is not warranted for either knee under DC 5260 because there has been no probative evidence that flexion was ever limited to 30 degrees.  Similarly, a higher, 20 percent disability rating is not warranted for either knee under DC 5261 because there has been no probative evidence that extension was ever limited to 15 degrees.  As noted above, the Veteran's bilateral extension was consistently found to be normal at zero degrees, and her most reduced range of motion testing results for flexion was at 115 degrees bilaterally upon August 2017 VA knee examination.  See June 2008 VA knee examination report; November 2008, March 2009, and, and October 2009 Outpatient treatment notes; January 2016 VA knee examination report; and August 2017 VA knee examination report.  The Board notes the June 2009 VA treatment record which indicated that the Veteran demonstrated 48 degrees of flexion, bilaterally while standing; however pursuant to Correia v. McDonald, range of motion is tested in active and passive motion, for which her most reduced results were 115 degrees, bilaterally.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

These ranges of motion do not meet the criteria for a 20 percent rating under DC 5260.  As such, the Board finds that disability ratings in excess of 10 percent for patellofemoral syndrome based on limitation of motion for the Veteran's left knee and right knee disabilities are not warranted at any time during the appeal period under DCs 5099-5024, 5260, 5261

Additionally, there is no indication that the Veteran's bilateral knee patellofemoral syndrome warrants increased ratings under any other diagnostic code relating to the knees.  There is no medical evidence indicating that the Veteran's bilateral knee patellofemoral syndrome is manifested by ankylosis, impairment of the tibia and fibula, or genu recurvatum.   There were no findings of dislocated or removed cartilage.  As such, an increased rating cannot be assigned under DCs 5256, 5262, 5263, 5257, 5258, or 5259.  

The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain.  DeLuca, 8 Vet. App. at 206-07.  These factors have been taken into consideration and are already contemplated in the 10 percent ratings under DC 5260.  Further, while the VA examiners noted the Veteran's complaints of additional pain with repetitive motion, there was not additional loss of motion or other symptoms, other than those already recognized by the Veteran's currently assigned evaluation.  The Board emphasizes that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  

For all of the foregoing reasons, the Board finds that an evaluation in excess of 10 percent under DCs 5024-5260 is not warranted at any time during the appeal period for the Veteran's bilateral knee patellofemoral syndrome.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).

Right Ankle Analysis

The Veteran filed a claim for service connection for bilateral ankle swelling.  See April 2008 VA Form 21-526 Veteran's Application for Compensation and/or Pension.  In a November 2008 rating decision, service connection for chronic strain, right ankle was granted with an evaluation of 10 percent effective January 1, 2008.  The Veteran's right ankle is rated pursuant to DCs 5099-5024.

Diseases rated under DCs 5013 through 5024 are rated on the basis of limitation of motion of the body part affected as degenerative arthritis.  38 C.F.R. § 4.71a, DCs 5013-5024.

Under DC 5271, a 10 percent rating is warranted for a moderate limitation of ankle motion.  A 20 percent rating is warranted for a marked limitation of ankle motion.

In addition, the following diagnostic codes are also relevant to the claim: 

Under 38 C.F.R. § 4.71a, DC 5270, a 20 percent rating is warranted for ankylosis of the ankle, when shown to specified degrees and position. 

Under 38 C.F.R. § 4.71a, DC 5272, ankylosis of a subastragalar or tarsal joint, or of the ankle itself, warrants evaluations ranging from 10 to 40 percent, depending on the position of the joint and whether there are any deformities of abduction, adduction, inversion, or eversion. 

Under 38 C.F.R. § 4.71a, DC 5273, a 10 or a 20 percent rating is warranted for os calcis or astragalus, malunion of, with moderate (10 percent) or marked (20 percent) deformity. 

The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71.  Normal dorsiflexion of the ankle is from 0 to 20 degrees.  Normal plantar flexion of the ankle is from 0 to 45 degrees.

Turning to the facts in the case, the Veteran was afforded a June 2008 VA examination and the report indicated that the Veteran was diagnosed with chronic strain, bilateral ankle.  Physical examination of the right ankle revealed tenderness; no signs of edema, effusion, weakness, redness, heat, or guarding of movement; and there was no subluxation.  There was no deformity.  Range of motion testing of the right ankle revealed she had dorsiflexion of 20 degrees out of 20 degrees with 20 "degree that pain" and plantar flexion of 40 degrees out of 45 degrees.  On the right, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  There was no indication of a malunion to the os calcis or malunion of the astralgus on the right. 

The Veteran was afforded a January 2016 VA ankle examination and the report indicated the Veteran did not have a current diagnosis associated with her chronic bilateral ankle strain and noted that her bilateral ankle strains have resolved.  The Veteran did not report flare-ups of the ankles and did not report having any functional loss or functional impairment of the joint or extremity being evaluated on this DBQ (regardless of repetitive use).  Range of motion of the bilateral ankles was all normal with dorsiflexion from zero to 20 degrees and plantar flexion from zero to 45 degrees, bilaterally.  There was no pain noted in exam; no evidence of pain with weight bearing bilaterally; no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue bilaterally; and there was no crepitus bilaterally.  The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions, bilaterally.  The examiner indicated that she was not being examined immediately after repetitive use over time and examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  The examiner further indicated it was not possible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time.  The Veteran did not have muscle atrophy bilaterally; did not have ankylosis bilaterally; did not have ankle instability or dislocation suspected bilaterally; and did not have now have or has she ever had "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy).  The Board notes that the Veteran testified that the examiner did not conduct range of motion testing upon January 2016 VA examination.  See March 2017 Board Hearing Transcript. 

The Veteran was afforded an August 2017 VA ankle examination for her diagnosed chronic bilateral ankle strain.  The Veteran reported flare-ups of the ankles described as swelling in her ankles and reported having functional impairment of her ankles described as inability to jog and that walking long distanced caused swelling.  Initial range of motion testing of the Veteran's right ankle revealed she had dorsiflexion of zero to 10 degrees and plantar flexion of zero to 40 degrees.  Range of motion itself did not contribute to functional loss; pain was not noted on examination; there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; there was no evidence of pain with weight bearing; and there was no objective evidence of crepitus.  The Veteran was able to perform right ankle repetitive use testing with at least three repetitions with additional functional loss caused by pain and range of motion results showing dorsiflexion of zero degrees to 40 degrees and plantar flexion of zero degrees to five degrees.  Here, the Board notes the standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71, and normal dorsiflexion of the ankle is from zero to 20 degrees and normal plantar flexion of the ankle is from zero to 45 degrees.  As such, it appears the VA examiner intended to report that after three repetitions, range of motion for plantar flexion was zero degrees to 40 degrees and dorsiflexion of zero degrees to five degrees, and the Board will construe these findings accordingly.  

The examiner indicated that the Veteran was not being examined immediately after repetitive use over time and the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time.  The examiner indicated that the examination was not being conducted during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up.  Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time with pain noted as the factor that caused the functional loss and pain was noted as factor that caused functional loss during flare-ups.  She did not have muscle atrophy, bilaterally and did not have ankylosis, bilaterally.  Ankle instability or dislocation was suspected, bilaterally; she did not have now have or has she ever had "shin splints", stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy); and there were no other pertinent physical findings, complications, conditions, signs or symptoms related to her bilateral ankle condition. 

In light of the discrepancy between the Veteran's reports and January 2016 VA examination report findings and in affording the Veteran the benefit of reasonable doubt, based on the foregoing the Board finds that for the entire appeal period, the Veteran's chronic strain of the right ankle has been manifested by marked limitation of range of motion.  Specifically, her most reduced range of motion for the left ankle was upon August 2017 VA examination at which time she demonstrated plantar flexion from zero degrees to 40 degrees and dorsiflexion from zero degrees to five degrees.  Further, the record does not include competent evidence to show ankylosis of the left ankle.  See June 2008, January 2016, and August 2017 VA ankle examination reports.  Therefore, the Board finds that the evidence shows the Veteran's right ankle has been characterized by marked limitation of motion with dorsiflexion reduced to five degrees to warrant a 20 percent rating; however there is insufficient to show ankylosis of the right ankle, as required for an increased initial evaluation in excess of 20 percent under DCs 5270 and 5272.  In addition, there is no medical evidence of record to show that the Veteran's right ankle is productive of a malunion of the os calcis or astragalus, or astragalectomy, to warrant an initial evaluation in excess of 20 percent under DCs 5273 or 5274. 

Finally, a higher evaluation is not warranted for functional loss.  See 38 C.F.R. §§ 4.40 and 4.45; DeLuca; VAGCOPPREC 9- 98.  The Veteran is shown to have a limitation of motion for a 20 percent evaluation, but no higher under DC 5271, and the medical evidence does not contain evidence of such symptoms as neurological impairment, incoordination, loss of strength, or any other findings that would support an initial evaluation in excess of 20 percent for the right ankle even with consideration of 38 C.F.R. §§ 4.40 and 4.45.

For all of the foregoing reasons, the Board finds that a 20 percent evaluation, but no higher, for the entire period on appeal is warranted for the Veteran's chronic strain of the right ankle.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001).




ORDER

Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the left knee is denied.

Entitlement to an initial rating in excess of 10 percent for patellofemoral syndrome of the right knee is denied.

Entitlement to an initial rating of 20 percent for chronic strain of the right ankle is granted, subject to the regulations governing the payment of monetary benefits.


REMAND

The Veteran filed a claim for service connection for bilateral ankle swelling.  See April 2008 VA Form 21-526 Veteran's Application for Compensation and/or Pension.  In a November 2008 rating decision, service connection for chronic strain, left ankle was granted with an evaluation of 10 percent effective January 1, 2008, and in an October 2017 rating decision, the Veteran was granted an increased evaluation for chronic strain, left ankle from 10 percent to 20 percent, effective August 21, 2017.  The Veteran's left ankle is currently rated pursuant to DCs 5024-5271.

The Veteran was afforded an August 2017 VA ankle examination for her diagnosed chronic bilateral ankle strain and the examination report indicated that the Veteran did not have ankylosis of the left ankle.  However, range of motion testing of the Veteran's left ankle revealed dorsiflexion of zero to zero degrees and plantar flexion of zero to 45 degrees.  In light of the discrepancy between range of motion noted as zero to zero for dorsiflexion and the examiner's indication that there was no ankylosis, clarification is needed.  Therefore, a remanded is warranted to provide the Veteran another VA left ankle examination.

Updated VA treatment records should also be secured on remand. 

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment records. All obtained records should be associated with the evidentiary record.

2.  Then, the Veteran should be afforded a VA left ankle examination with an appropriate examiner to determine the current severity of her service-connected left ankle disability.  The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner.  The examination report must include a notation that this record review took place. 

The examiner is asked to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the Veteran's service-connected left ankle.  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 examiner is asked to reconcile his/her findings with the August 2017 VA ankle examination report which indicated the Veteran dorsiflexion of zero to zero degrees but did not have ankylosis.

All opinions provided must include a complete rationale and explanation of the basis for the opinion based upon review of the evidence of record, the clinical examination, and with consideration of the Veteran's statements.  If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 

3.  After the above development has been completed, readjudicate the claim.  If the benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case, and return the case to the Board.

The Veteran and her representative have 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). 




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs