Citation Nr: 18129092 Decision Date: 08/24/18 Archive Date: 08/23/18 DOCKET NO. 12-20 782A DATE: August 24, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected right plantar fasciitis is denied. Entitlement to a disability rating in excess of 10 percent prior to December 12, 2017, and 20 percent thereafter for left knee instability/subluxation is denied. Entitlement to a disability rating in excess of 10 percent prior to December 12, 2017, and 20 percent thereafter for right knee instability/subluxation is denied. Prior to May 9, 2017, a separate 10 percent rating, but no higher, for left knee limitation of motion is granted. Since May 9, 2017, a disability rating in excess of 30 percent for left knee limitation of motion is denied. Prior to May 9, 2017, a separate 10 percent rating, but no higher, for right knee limitation of motion is granted. Since May 9, 2017, a disability rating in excess of 40 percent for right knee limitation of motion is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s right plantar fasciitis has been characterized as moderately severe, at worst. 2. Prior to December 12, 2017, the Veteran’s service-connected bilateral knee instability/subluxation has been manifested by slight lateral instability and complaints of a feeling of giving way. 3. As of December 12, 2017, the Veteran is noted to have a history of moderate lateral instability in the bilateral knees. 4. Prior to May 9, 2017, the Veteran’s bilateral knee disability has been manifested by painful motion and arthritic changes, without compensable limitation of motion. 5. Since May 9, 2017, the Veteran’s left knee disability has been manifested by pain, without evidence of limitation of flexion to less than 60 degrees or extension to more than 20 degrees. 6. Since May 9, 2017, the Veteran’s right knee disability has been manifested by pain, without evidence of limitation of flexion to less than 60 degrees or extension to more than 30 degrees. 7. Since December 12, 2017, the Veteran receives the maximum schedular evaluation allowable for his combined right lower extremity disabilities under the Amputation Rule. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right plantar fasciitis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a disability rating in excess of 10 percent for left knee instability/subluxation prior to December 12, 2017, and 20 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for a disability rating in excess of 10 percent for right knee instability/subluxation prior to December 12, 2017, and 20 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. The criteria for a 10 percent rating, but no higher, for left knee limitation of extension have been met prior to May 9, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260-5261. 5. The criteria for a 10 percent rating, but no higher, for right knee limitation of extension have been met prior to May 9, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260-5261. 6. The criteria for a disability rating in excess of 30 percent for left knee limitation of extension have not been met since May 9, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260-5261. 7. The criteria for a disability rating in excess of 40 percent for left knee limitation of extension have not been met since May 9, 2017. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260-5261. 8. Since December 12, 2017, the Veteran is in receipt of a combined 60 percent rating for his service-connected right lower extremity disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.68, 4.71a, DC 5257, 5261, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to October 1999. This matter comes to the Board of Veterans’ Appeals (Board) from a rating decision dated in March 2011 by the Regional Office (RO) in Fort Harrison, Montana. Jurisdiction over the Veteran’s claims was subsequently transferred to the RO in Muskogee, Oklahoma. In January 2015, the Board remanded the Veteran’s claim for plantar fasciitis for the provision of a new VA examination and denied an increased disability rating in excess of 10 percent for the right knee disability, and an increased disability rating in excess of 10 percent for the left knee disability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the Court). In March 2015, the Court issued a Memorandum Decision in which it vacated the Board’s decision denying an increased rating in excess of 10 percent for the left and right knee disabilities and remanded it to the Board for further proceedings consistent with the Court’s decision. These claims were previously before the Board in March 2017, at which time they were remanded for additional development. In September 2017, the Board found the development to be only partially complete and remanded the claims again for additional development. Stegall v. West, 11 Vet. App. 268 (1998). In February 2018, the RO increased the ratings for the Veteran’s left and right knee subluxation to 20 percent, respectively. The claims have been recharacterized accordingly. Due to the extensive history of the claims, the previous decisions of the Board and Court are incorporated by reference. Increased Rating Disabilities of the knee are evaluated under the General Rating Formula the Knee and Leg. 38 C.F.R. § 4.71a, DC 5257. The criteria for rating the Veteran’s disability are set forth in a General Rating Formula for evaluating other impairment of the knee as follows: A 10 percent evaluation is assigned where there is slight recurrent subluxation or lateral instability of the knee; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. Id. The Board notes that there is no diagnostic code directly applicable to plantar fasciitis. The Veteran's right plantar fasciitis has been rated by analogy (as indicated by the designation 5299-5284), under 38 C.F.R. § 4.71a, DC 5284, which pertains to “other injuries of the foot.” See 38 C.F.R. §§ 4.20, 4.27. Under DC 5284, a 10 percent rating is assigned for moderate injuries of the foot; a 20 percent rating is assigned for moderately severe injuries of the foot; and a 30 percent rating is assigned for severe injuries of the foot. 38 C.F.R. § 4.71a. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 1. Entitlement to a rating in excess of 20 percent for right plantar fasciitis prior to December 12, 2017 In September 2010, the Veteran submitted a claim for an increased rating for his service-connected right plantar fasciitis. The Veteran was afforded VA examinations in 2010, 2012, and 2015, but the VA examiners did not provide an opinion as to whether the right plantar fasciitis caused severe impairment or resulted in actual loss of use of the foot. See 38 C.F.R. § 4.71a, DC 5284. Therefore, additional development was necessary. VA and private treatment records denote complaints of right foot pain. At his October 2010 VA examination, the Veteran complained of constant, non-radiating pain at the in-step and directly under the heel with daily flares of constant duration. The Veteran reported significant impairment during the flare-up but did not report any associated symptoms of weakness, stiffness, swelling, heat and redness, instability or giving way, fatigability, or lack of endurance. He had not missed work due to flare-ups but was unable to walk and stand for long period of time. On examination, strength, reflexes, and range of motion were normal. Functional limitation was noted due to pain. Heel, toe, and tandem walk demonstrated poor coordination. Weightbearing fell on the middle of the foot, and there was no evidence of callosities, breakdown, or unusual shoe wear pattern that would indicate abnormal weight bearing. On examination in June 2012, imaging studies revealed bilateral heel spurs. The examiner opined that bilateral heel spurs and plantar fasciitis would interfere with his ability to perform only the non-sedentary tasks associated with employment. Walking and carrying unlimited weight would be limited to 30 minutes at a time, with a rest after. He could stand indefinitely with proper foot wear and had no lifting restrictions. On VA examination in May 2015, the Veteran reported that his plantar fasciitis had previously been treated with cortisone injections but he no longer had severe pain due to numbness of the foot caused by service-connected back issues. The Veteran reported right heel pain with standing which, along with his back disability, contributed to difficulty standing and walking. On examination, the Veteran demonstrated pain on use and manipulation of the foot accentuated on manipulation. He reported the use of arch supports with continued symptoms. Functional loss included pain on weightbearing and interference with standing. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability during flare-ups or when the foot was used repeatedly over a period of time. The Veteran reported no change in his right plantar fasciitis at a May 2017 VA examination. The Veteran described pain that was constant, throbbing, aching, and sometimes shooting but reported no flare-ups or functional loss. The examiner observed pain on use and manipulation of foot accentuated on manipulation, swelling on use, and extreme tenderness of the plantar surface unimproved by orthopedic shoes or appliances. Functional loss was demonstrated as pain on weightbearing. Though the examiner opined that pain, weakness, fatigability, or incoordination would significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period of time, she was unable to describe the anticipated functional loss without speculation. Imaging studies showed a large spur off the plantar aspect of the calcaneus. A November 2017 addendum opinion indicated that, based on the symptoms observed and reported at the May 2017 examination, the Veteran displayed a moderate degree of impairment of the right foot. The Veteran’s right plantar fasciitis is currently rated as 20 percent disabling due to moderately severe symptoms. As the Veteran’s symptoms were essentially stable (moderate) for the entire period on appeal, the Board finds that his right plantar fasciitis does not warrant a higher rating based on severe symptoms. Therefore, his claim is denied. 2. Entitlement to an increased disability rating in excess of 10 percent for left knee instability/subluxation prior to December 12, 2017, and 20 percent thereafter 3. Entitlement to a rating in excess of 30 percent for left knee limitation of motion 4. Entitlement to an increased disability rating in excess of 10 percent for right knee instability/subluxation prior to December 12, 2017 5. Entitlement to a rating in excess of 40 percent for right knee limitation of motion VA and private treatment records document continuous complaints of knee pain. The October 2010 VA examination report indicates that the Veteran described his knee pain as constant, but non-radiating. He reported that the pain was a 6 out of 10 (scale of 1 to 10 with 10 most severe) and was 6/10 on flare-ups. He stated that the pain was daily and was precipitated by weight bearing activity. The Veteran indicated that he had associated symptoms of weakness, stiffness, and lack of endurance but specifically denied having any swelling, heat, redness, instability, giving way, locking, fatigability, or lack of endurance. He reported having limitation of motion and functional impairment during flares due to walking, standing, bending, and squatting, and he stated that he had significant impairment during flare-ups. However, he denied missing any work due to flare-ups. Physical examination revealed that the knees appeared normal with no erythema, edema, warmth, or deformity. There was tenderness on palpation of the medial and lateral joint line on both knees but no pain with patellofemoral compression. Range of motion of both knees was zero degrees to 140 degrees. Movement was guarded, but there was no objective evidence of instability, weakness, or abnormal movement. Pain was reported with motion and evidenced by grimace; there was no evidence of fatigue, weakness, lack of endurance, or additional limitations after repetitive use. Muscle strength was 5/5 in the lower extremities and was 5/5 strength bilaterally against gravity and strong resistance. The examiner noted that there were complaints of fatigue, weakness, and lack of endurance that did not limit joint function any further than that documented range and there was no clinical or objective evidence of additional limitation due to claimed flare-ups beyond the measured and reported ranges. X-ray examination of the knees revealed minimal arthritic changes. The assessment was slight subluxation of the right knee. The examiner opined that there was no objective evidence of an increase in that disability and examination was normal. The examiner opined that there was no objective evidence of an impact on sedentary social and occupational activities but it was at least as likely as not that the Veteran would have difficulty with prolonged weight bearing activities. The June 2012 VA examination report indicates that the Veteran described his knees as hurting all the time and worse. The Veteran indicated that he had flare-ups and claimed that he could not walk any distance or the pain would increase and then the knees would collapse. On physical examination the Veteran demonstrated full range of motion in both knees (0-140 degrees), albeit with pain beginning at zero degrees, but was noted to be unable to perform repetitive motion. The examiner indicated that the functional loss and impairment of the knees were manifested by pain on movement. There was tenderness and pain to palpation for the joint line and soft tissue of each knee. Muscle strength testing on right and left knee flexion and extension was 3/5 (5/5 was normal strength). The examiner was unable to test instability. It was noted that the Veteran used a cane on occasion. X-ray examination of the knees revealed findings of mild arthritis and the examiner noted that this was not inconsistent with aging. The examiner noted that he believed the Veteran had far more functionality than he wished to demonstrate as nothing in the history, limited examination, or x-ray findings suggested anything less than normal functioning. The examiner indicated that the examination was limited by the Veteran’s behavior and noted that, from the observed behavior of the Veteran, he did not believe that the Veteran’s knees would interfere with any sedentary or non-sedentary work-related activity. In a May 2017 VA examination for the Veteran’s bilateral knee disabilities, the VA examiner, upon a review of the claims file, subjective interview, and objective testing, diagnosed the Veteran with bilateral knee degenerative arthritis with subluxation. The Veteran reported that his bilateral knee condition had not “changed in a decade” and was characterized by aches and pain, limited weightbearing, and no use of steps without turning sideways; he denied flare-ups but reported limited use of stairs. Range of motion tests provided the following results: left flexion to 70 degrees and right to 100 (normal 140 degrees) and left extension limited to 20 degrees and right to 30 (normal 0 degrees) with suboptimal effort. No additional loss on repetition or functional loss due to pain, weakness, fatigue, incoordination, or lack of endurance was noted. Pain was objectively noted at flexion and extension, at rest, and with movement. Muscle strength testing on right and left knee flexion and extension was 5/5. The examiner noted a history of slight subluxation but found no instability on testing. The Veteran used no assistive devices. The examiner opined that the Veteran would not be able to stand, walk, or sit for any length of time. At a December 2017 VA examination, the Veteran was diagnosed with left patellofemoral pain syndrome and bilateral degenerative arthritis with limitation of extension associated with slight subluxation as progressions of the service-connected bilateral knee disabilities. The Veteran reported that his knees felt warm with activity and he was unable to walk up or down stairs due to buckling of his legs and pain that was more prominent when walking down stairs. Range of motion tests provided the following results: left flexion to 75 degrees and right to 65; left extension limited to 5 degrees and right to 0 with no additional loss on repetition. Pain and loss of range of motion were reported to cause functional loss with pain found on passive range of motion and when non-weightbearing. The examiner noted tenderness to palpation of the patella, crepitus, and pain on weightbearing. Muscle strength testing on flexion and extension was 4/5 on the right and 3/5 on the left. Atrophy of the left lower extremity was found. The examiner noted a history of slight subluxation and moderate lateral instability but found no instability on testing. The veteran reported occasional use of a cane. Regarding the Veteran’s bilateral knee instability/subluxation, prior to December 12, 2017, the record does not demonstrate the requisite manifestations sufficient to warrant an increased rating for under DC 5257. The evidence does not show that the Veteran’s bilateral knee instability was any more than slight in severity, even when taking into account the Veteran’s lay statements. The Veteran’s left knee subluxation is rated as 20 percent disabling beginning December 12, 2017, based on a history of moderate lateral instability noted on examination. There was no objective evidence of severe, recurrent subluxation or lateral instability of the knee to warrant a higher rating under this diagnostic code. The Board has considered whether the Veteran is entitled to higher ratings under other diagnostic codes pertaining to the knee. Prior to May 9, 2017, the Board finds that while the Veteran had normal range of motion in his knees, he had painful motion, and there was x-ray evidence of arthritis. Therefore, with consideration of the sections 4.40 and 4.45 and DeLuca, the Board resolves reasonable doubt and grants separate 10 percent ratings, but no higher, for left knee and right knee limitation of extension. However, a higher rating is not warranted, as there is no lay or medical evidence that the Veteran’s knee pain has been so disabling to result in flexion limited to at least 30 degrees, or extension limited to 15 degrees. Since May 9, 2017, the Board finds that even with consideration of the sections 4.40 and 4.45 and DeLuca, there is no lay or medical evidence that the Veteran’s bilateral knee disabilities have been so disabling as to result in compensable limitation of flexion to less than 60 degrees. There is no also no lay or medical evidence that the Veteran’s left knee extension was more than 20 degrees or that the right knee extension was more than 30 degrees. Therefore, higher ratings under DCs 5260 and 5261 are not warranted for the Veteran’s knee disabilities for the period under consideration. 6. Entitlement to an increased disability rating in excess of 20 percent for a right knee disability status post lateral release and right plantar fasciitis from December 12, 2017 As of December 12, 2017, the Veteran is in receipt of a 40 percent rating under DC 5003-5261 for right knee limitation of extension, a separate 20 percent rating under DC 5257 for subluxation of the right knee, and a 20 percent rating under DC 5299-5284 for right plantar fasciitis. As such, the Veteran’s combined rating for right lower extremity disabilities is 62 according to Table 1, “Combined Ratings Table.” See 38 C.F.R. § 4.25. This combined value must then be converted to the nearest whole number divisible by 10, and combined values ending in 5 will be adjusted upward. Accordingly, 62 percent is converted to 60 percent. Under the “amputation rule,” the combined rating for disabilities of an extremity may not exceed the rating for the amputation at the elective level, were the amputation to be performed. 38 C.F.R. § 4.68. Here, the combined evaluations for disabilities of the knee and lower extremity shall not exceed the 60 percent evaluation of Diagnostic Code 5164 (noting a 60 percent rating for amputation not improvable by prosthesis controlled by natural knee action). As the Veteran is currently assigned a combined rating of 60 percent for his right lower extremity disabilities, this equals the maximum evaluation of 60 percent under the amputation rule. Because the assignment of a higher rating or separate rating would cause the combined rating to exceed 60 percent, the amputation rule precludes the assignment of a higher or separate rating for his right lower extremity disabilities. See 38 C.F.R. § 4.68. This is the maximum benefit available for the Veteran’s right lower extremity disabilities, and assignment of increased or separate ratings would not result in additional compensation. As such, the Veteran’s claim is denied. Although the Board is grateful for the Veteran’s honorable service, the preponderance of the evidence is against these claims. Under these circumstances, the benefit-of-the-doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the increased rating claims must be denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel