Citation Nr: 20002153 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 14-02 455 , DATE: January 9, 2020 ORDER The claim for an evaluation greater than 20 percent for right ankle sprain is denied. The claim for an evaluation greater than 10 percent for degenerative changes of the left knee is denied. FINDINGS OF FACT 1. The service-connected right ankle sprain is manifested by marked limitation of right ankle motion at its most limited with consideration of pain, pain on motion, pain on weightbearing and additional pain, weakness, fatigability and incoordination after repetitive motion and during flare-ups; without findings of ankylosis; ankylosis of subastragalar or tarsal joint; malunion of the os calcis or astragalus; astragalectomy; impairment of the right foot or loss of use of the whole right foot. 2. The service-connected degenerative changes, left knee, are manifested by range of motion from zero degrees extension to 90 degrees flexion at its most limited with consideration of pain, pain on motion, pain on weightbearing and additional pain, weakness, fatigability and incoordination after repetitive motion and during flare-ups, and effusion; without findings of ankylosis; involvement or removal of impaired or symptomatic cartilage or menisci; instability, laxity or subluxation; locking; impaired tibia and fibula; or of genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 20 percent for right ankle sprain are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5270, 5271, 5272, 5273, 5274, 5284 (2019). 2. The criteria for an evaluation greater than 10 percent for degenerative changes, left knee, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Codes 5010, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps on active service from December 1999 to December 2002. This matter comes to the Board of Veterans Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This case was before the Board in June 2018, at which time it was remanded for additional VA examinations. That development having been completed, the case is now again before the Board. Increased Rating Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate Codes identify the various disabilities. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same disability under several Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). a) Right Ankle Sprain The 20 percent assigned the Veteran’s service-connected right ankle disability is currently assigned under Code 5271 for marked limitation of the ankle. This is the highest evaluation provided under Code 5271. Higher evaluations are afforded under Code 5270 for ankylosis of the ankle in various positions. Under Code 5270, ankylosis in plantar flexion between 30 and 40 degrees, or in dorsiflexion between zero and 10 degrees is afforded a 30 percent evaluation; or in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion or eversion deformity is afforded a 40 percent evaluation. In addition, higher and/or separate compensable evaluations could be warranted under Code 5272 for ankylosis of the subastragalar or tarsal joint in good or poor weight-bearing positions, under Code 5273 for malunion of the os calcis or astragalus and under Code 5274 for astragalectomy. However, the medical evidence does not show that manifestations of ankylosis, the ankle, subastragalar or tarsal joint, malunion of the os calcis or astragalus, or astragalectomy are present. Thus, Codes 5270, 5272, 5273, and 5274 will not be considered herein. The Veteran asserts that his right ankle disability is worse than has been evaluated, and argues that a higher evaluation is warranted. The medical evidence, however, does not support his assertions. VA treatment records show the Veteran has needed treatment for his right ankle including flare-ups and that he has required treatment with over the counter and prescribed pain medications; brace and cane for support; and use of crutches after a flare-up in 2014. However, the medical evidence does not show that the service-connected right ankle disability is manifested by right ankle ankylosis, malunion of the os calcis or astragalus, or residuals of an astragalectomy. Rather, VA examiners in 2012, 2014, and 2019 objectively observed range of motion in the right ankle limited to 30 degrees plantar flexion and 10 degrees dorsiflexion at its most limited with consideration of pain, pain on motion, pain on weight bearing, and additional pain, weakness, fatigability and incoordination after repetitive motion and during flare-ups; inflammation, muscle strength at 5 of 5 throughout; and no findings of ankylosis or laxity. As to functional impairment, the medical evidence shows the Veteran has reported periods of increased functional impairment consisting of persistent pain, difficulty with stairs, inability to climb ladders, reported weakness, fatigability, and incoordination. In addition, the 2014 VA examination report established the Veteran was unable to walk, carry loads, or travel or complete activities of daily living without interference during flare-ups which occurred two times a year. Yet, the medical evidence, including the 2014 VA examination report, does not establish at any time throughout this appeal that the right ankle disability rendered the Veteran’s right foot to be functionally useless, or to be more than moderately severely impaired. Rather, the 2014 VA examiner explained that the Veteran continued to work in a hospital setting and anticipated a job change. The 2019 VA examiner observed that the Veteran was then working as a respiratory therapist and able to complete tasks at work without limitations. Thus, the medical evidence does not establish findings of right ankle ankylosis, malunion of the os calcis or astragalus, residuals of an astragalectomy; or of instability, dislocation, muscle weakness or atrophy or other findings demonstrating injury of the foot equivalent to a level greater than moderately severe; or productive of such impairment as to render the right foot useless such that amputation with prosthesis would equally serve the Veteran. Rather, the VA examiners observed the Veteran to walk, stand, and sit, albeit with pain, and use of a cane and brace. It is noted that the Veteran suffered periods of prolonged and unresolved pain in 2018 and 2019 associated with nonservice-connected disorders or influences. A VA treating providers found to be associated with changes in pain medication due to the Veteran having sustained a myocardial infarction and due to suspected inflammatory disease or gout. The Veteran is not service-connected for myocardial infarction. In addition, he has not been diagnosed with an inflammatory disease or gout, and no such disorder has been service-connected. In sum, absent findings of ankylosis, malunion of the os calcis or astragalus, or residuals of astraglectomy in the right ankle, an evaluation greater than 20 percent cannot be assigned under Codes 5270, 5272, 5273, or 5274. Further, as the criteria fully consider the Veteran’s reports of pain, functional impairment, and flare-ups, when applied in light of the DeLuca factors, and so no extraschedular evaluation is warranted. 38 C.F.R. § 3.321. Accordingly, an evaluation greater than 20 percent for the service-connected right ankle sprain is not warranted. b) Left Knee The 10 percent evaluation awarded for the service-connected left knee disability was assigned under Code 5010 for traumatic arthritis in the left knee joint established by x-ray findings and evidencing limitation of motion not otherwise compensable under the relevant diagnostic codes (here, 5260 and 5261) objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, Code 5003, 5010. Higher evaluations are provided for limitation of knee motion under Codes 5260 and 5261. Code 5260 affords a 20 percent evaluation for flexion limited 30 to 14 degrees, and a 30 percent evaluation for flexion limited to 15 degrees or less. Code 5261 affords a 20 percent evaluation for extension limited 15 to 19 degrees, a 30 percent evaluation for extension limited 20 to 29 degrees, a 40 percent evaluation for extension limited 30 to 44 degrees, and a 50 percent evaluation for extension limited to 45 degrees and greater. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Slight impairment merits a 10 percent evaluation. Moderate impairment warrants 20 percent. A 30 percent evaluation is assigned where the impairment is severe. Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. A 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint under Code 5258. A 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage under Code 5259. Other Codes are applicable to the evaluation of a knee disability include Code 5256, which contemplates ankylosis or the functional equivalent; Code 5262, which contemplates impairment to the tibia and fibula resulting in malunion or nonunion of the bones; and Code 5263, which contemplates genu recurvatum. However, the Veteran and his representative have not argued these Codes should be assigned, and the medical evidence does not support evaluation under these Codes. Thus, these Codes need not be discussed here. See 38 C.F.R. § 4.71a. The Veteran asserts that his left knee disability is worse than has been evaluated, and argues that a higher evaluation is warranted. The medical evidence, however, does not support his assertions. There is no dispute that the Veteran has reported and been treated for complaints concerning his service-connected left knee disorder. VA treatment records show the Veteran including over the counter and prescribed pain medications; the use of a cane; and, in 2014, the use of crutches after a flare-up. See CAPRI Treatment Records, generally. However, the medical evidence does not show that the service-connected left knee disability is manifested by the required limitation of motion to render an evaluation greater than 10 percent. Flexion is not limited to 30 degrees or less, and extension is not limited to 15 degrees or greater. In addition, VA examiners have not found the service-connected left knee disability to manifest recurrent subluxation or lateral instability, or dislocated cartilage with frequent episodes of locking and pain. In addition, the medical evidence does not establish that the manifestations required to assign a separate, compensable evaluations are present. Rather, VA examinations conducted in 2012, 2014, and 2019 show that extension was not limited at any point, and that flexion was limited to 90 degrees at its most, with consideration for pain, pain on motion, and repetitive motion as well as flare-ups. VA examiners found no recurrent subluxation or lateral instability, dislocated cartilage with frequent episodes of locking and pain, symptomatic removed cartilage, or laxity. Strength was found to measure 4 of 5 in 2012 but 5 of 5 in 2014 and 2019. As to functional impairment, the medical evidence shows and the Veteran has reported periods of increased functional impairment consisting of persistent pain, difficulty with stairs, inability to climb ladders, reported weakness, fatigability, and incoordination. In addition, the 2014 VA examination report established the Veteran was unable to walk, carry loads, or travel or complete activities of daily living without interference during flare-ups. Yet, the 2014 VA examiner observed that the Veteran continued to work in a hospital setting, and was anticipating a job change that would be less physically demanding. In 2019, the VA examiner reported that the Veteran was working as a respiratory therapist and was able to complete tasks at work without limitations. Moreover, as above noted, strength was measured at no less than 4 of 5 throughout, and there were no findings of instability, laxity, recurrent patellar subluxation, or of ankylosis at any time throughout the period on appeal. It is noted that the Veteran suffered periods of prolonged and unresolved pain in 2018 and 2019 associated with nonservice-connected disorders or influences. A VA treating providers found to be associated with changes in pain medication due to the Veteran having sustained a myocardial infarction and due to suspected inflammatory disease or gout. The Veteran is not service-connected for myocardial infarction. In addition, he has not been diagnosed with an inflammatory disease or gout, and no such disorder has been service-connected. In sum, absent findings of ankylosis, limitation of flexion to 30 degrees or less, or of limitation of extension to 15 degrees or more, recurrent subluxation or lateral instability or of dislocated cartilage with frequent episodes of locking and pain, impairment of the tibia and fibula, or of genu recurvatum, an evaluation greater than 10 percent cannot be assigned under Codes 5256, 5260, 5261, 5258, 5262, or 5263. The Veteran is already in receipt of a 10 percent evaluation for noncompensable limitation of left knee joint under Code 5010. Absent a finding of limitation of motion that is compensable under Codes 5260 (limitation of flexion to 45 degrees or less) and 5261 (limitation of extension to 10 degrees or greater), however, additional compensable evaluations for limitation of motion cannot be assigned and combined. See Note (1) following Code 5003, 38 C.F.R. § 4.71a. Finally, absent findings of recurrent subluxation or lateral instability, dislocated cartilage with frequent episodes of locking and pain, symptomatic removed cartilage, impairment of the tibia and fibula, or of genu recurvatum, separate additional compensable evaluations cannot be afforded under Codes 5256, 5259, 5258, 5262, or 5263. Accordingly, an evaluation greater than 20 percent for the service-connected degenerative changes of the left knee is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.