Citation Nr: 20002285 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 09-24 309 DATE: January 10, 2020 ORDER Entitlement to an initial rating in excess of 40 percent for service-connected residual of a left lower extremity muscle injury (XIV), status post fragment wound, is denied. Entitlement to an initial rating in excess of 30 percent for service-connected residual of a left leg muscle injury (XI), status post fragment wound, is denied. Entitlement to an initial rating in excess of 30 percent for service-connected left knee patellofemoral pain and patellar dislocation and left lower extremity muscle injury (XII), status post fragment wound, is denied. Entitlement to an initial rating in excess of 10 percent for service-connected sciatic radiculopathy of the left lower extremity is denied. Entitlement to a rating in excess of 10 percent prior to February 1, 2010, in excess of 20 percent prior to February 16, 2016, and a rating in excess of 40 percent thereafter for service-connected residuals of lumbar spine fractured vertebra is denied. Entitlement to an initial compensable rating prior to February 24, 2010 and a rating in excess of 10 percent thereafter for left ankle lateral ligament insufficiency is denied. Entitlement to an initial rating in excess of 10 percent prior to December 16, 2016 for left knee limitation of flexion is denied. Entitlement to a 30 percent rating, but no higher, from August 28, 2013 to December 15, 2016 for left knee limitation of extension is granted. Entitlement to an initial compensable rating prior to February 23, 2010 and a rating in excess of 10 percent prior to December 16, 2016 for residuals of a shrapnel wound to the left lower leg is denied. Entitlement to an initial compensable rating prior to December 16, 2016 for a service-connected residual scar, left knee patellar and tendon repair, is denied. REMANDED Entitlement to an initial compensable rating prior to February 24, 2010 and a rating in excess of 10 percent prior to December 16, 2016 for left knee ligament instability is remanded. FINDINGS OF FACT 1. As of December 16, 2016, assigning increased ratings for the Veteran’s left lower extremity disabilities would violate the amputation rule. 2. For the period prior to February 1, 2010, the Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. 3. For the period prior to February 16, 2016, the Veteran’s lumbar spine disability was not manifested by forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 4. There is no evidence of ankylosis of the thoracolumbar spine at any point during the period on appeal. 5. For the period prior to February 24, 2010, the Veteran’s left ankle lateral ligament insufficiency was not manifested by symptoms of moderate limited motion; range of motion testing was normal. 6. For the period from February 24, 2010 to December 16, 2016, the Veteran’s left ankle lateral ligament insufficiency was of, at most, moderate severity; range of motion testing was normal throughout the period. 7. Prior to December 16, 2016, the Veteran’s left knee limitation of flexion was not manifested by flexion limited to 30 degrees. 8. As of August 28, 2013, the Veteran’s left knee limitation of extension was manifested by extension limited to 20 degrees. 9. Prior to February 23, 2010, the Veteran was not found to have one or two scars that were unstable or painful. 10. Prior to December 16, 2016, the Veteran was not found to have three or four scars that were unstable or painful. CONCLUSIONS OF LAW 1. From December 16, 2016 onward, the assignment of increased disability ratings for the Veteran’s left lower extremity disabilities would violate the “amputation rule.” 38 U.S.C. § 1155; 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5161. 2. The criteria for entitlement to a rating in excess of 10 percent prior to February 1, 2010, in excess of 20 percent prior to February 16, 2016, and a rating in excess of 40 percent thereafter for service-connected residuals of lumbar spine fractured vertebra, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for entitlement to an initial compensable rating prior to February 24, 2010 and a rating in excess of 10 percent prior to December 16, 2016 for left ankle lateral ligament insufficiency have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. The criteria for entitlement to a rating in excess of 10 percent prior to December 16, 2016 for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 5. The criteria for entitlement to a 30 percent rating, but no higher, for left knee limitation of extension have been met from August 28, 2013 to December 15, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 6. The criteria for entitlement to an initial compensable rating prior to February 23, 2010 and a rating in excess of 10 percent prior to December 16, 2016 for residuals of a shrapnel wound to the left lower leg have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7804. 7. The criteria for entitlement to an initial compensable rating prior to December 16, 2016 for a service-connected residual scar, left knee patellar and tendon repair, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Marine Corps from July 1968 to July 1972. He had service in Vietnam and is a recipient of the Purple Heart Medal, the Navy & Marine Corps Commendation Medal with combat distinguishing device, and the Combat Action Ribbon, among other awards and decorations. This matter was most recently before the Board in March 2018, at which time it was remanded for additional development. The case has since been returned to the Board for appellate adjudication. During the period on appeal, the Regional Office (RO) has issued multiple rating decisions increasing the disability ratings on appeal. Most recently, in a June 2019 rating decision, the RO assigned separate ratings for residual left leg muscle injury (Group XI) and residual left leg muscle injury (Group XII), status post shell fragment wounds; as well as for a left knee patellar and tendon repair residual scar and left lower extremity radiculopathy. Accordingly, those issues are also considered part of this appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where there is a question as to which of two ratings should be applied, the higher rating 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. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In reaching a decision on these matters, the Board has reviewed the evidence in the claims file and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C. § 7104 (d)(1); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence in exhaustive detail. Id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Left lower extremity disabilities from December 16, 2016 As previously noted, during the pendency of the appeal, the RO issued several rating decisions granting separate and increased ratings for various left lower extremity disabilities. As of December 16, 2016, separate ratings are in effect for residuals of a left lower extremity muscle injury (XIV), status post fragment wound (40 percent disabling); residuals of a left leg muscle injury (XI), status post fragment wound (30 percent disabling); left knee patellofemoral pain and patellar dislocation and left lower extremity muscle injury (XII), status post fragment wound (30 percent disabling); sciatic radiculopathy of the left lower extremity (10 percent disabling); residuals of a shrapnel wound to the left lower leg (10 percent disabling); left ankle lateral ligament insufficiency (10 percent disabling); left knee ligament instability (10 percent disabling); and residual scar, left knee patellar and tendon repair (0 percent disabling). Using the Combined Ratings Table set forth at 38 C.F.R. § 4.25, the combined disability rating for the Veteran’s left lower extremity disabilities is 80 percent. In this regard, it is important to note that under the “amputation rule,” the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation of the extremity to be performed. 38 C.F.R. § 4.68. Concerning lower extremity amputations, the Board notes that an 80 percent disability rating is assigned for amputation of the thigh at the upper third, one-third of the distance perineum to knee joint measured from perineum. 38 C.F.R. § 4.71a, Diagnostic Code 5161. Therefore, under to the amputation rule, the combined disability rating for disabilities of the Veteran’s left lower extremity shall not exceed 80 percent. As previously discussed, the Veteran’s combined disability rating for his left lower extremity disabilities totals 80 percent as of December 16, 2016. Accordingly, as of December 16, 2016, the Board may not assign increased ratings for any of the Veteran’s left lower extremity disabilities because doing so would violate the amputation rule. Therefore, the claims for increased ratings for the Veteran’s left lower extremity disabilities from December 16, 2016 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. Lumbar disability The Veteran seeks increased ratings for his service-connected lumbar spine disability, currently rated 10 percent disabling effective May 31, 2007, 20 percent disabling effective February 1, 2010, and 40 percent disabling effective February 16, 2016 under the General Rating Formula for Diseases and Injuries of the Spine (Diagnostic Codes 5235 to 5243)—specifically, diagnostic code 5242. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. See 38 C.F.R. § 4.71a. Under diagnostic Code 5242, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. A 40 percent evaluation requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Diagnostic Code 5242 also refers to Diagnostic Code 5003, under which degenerative arthritis established by x-ray findings will be rated based on limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Any associated objective neurologic abnormality is to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5237, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. Id., General Rating Formula, Note (2). With respect to joints, the disability factors reside in reductions of normal excursion of movements in different planes. Inquiries 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. 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). Intervertebral disc syndrome (IVDS) is evaluated under either the General Rating Formula or under the IVDS Formula, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes. Turning to the evidence of record, the Board observes that the Veteran was first afforded a VA examination in connection with his claim in September 2007. The Veteran reported that he had not sought medical or chiropractic treatment or taken medication for his back symptoms, finding that adequate fitting and comfortable shoes relieved him of much of his periodic low back pain. He also reported use of a low back support device. On physical examination, the examiner found his spine to be well-aligned with no suggestion of current muscle spasm or guarding and only minimal tenderness to deep pressure in the lower lumbar region. He exhibited no palpable muscle spasm or guarding and rapidly performed three range of motion tests, after which he could resume a fully upright position along with further hyperextension to an additional 20 degrees. The examiner noted increasing discomfort and fatigue with each sequence of range of motion testing. Right and left lateral flexion were 30 degrees each, and right and left lateral rotation were 60 degrees each. Straight leg raising was normal on both sides and there was no impairment of sensation in either right or left foot. The examiner diagnosed the Veteran with “chronic intermittent lower back pain without lumbar radiculopathy.” Of record is a July 2009 letter from the Veteran’s spouse, C.W. She wrote that the Veteran often needed to take breaks from driving to attempt to relieve his back pain or spasms. She wrote that it was impossible for him to walk in any shoes for more than three months before his back gave out, that he used to sleep on wood to relieve his back pain, that he has missed functions because he was in bed in pain, and that walking in the park was enough to cause back pain. The Veteran was afforded another VA examination in February 2010. The Veteran reported chronic low back pain with “intermittent exacerbations” aggravated in part by his left knee and ankle disabilities. The Veteran reported working full-time at Home Depot and described weakness in the back and intolerance for standing on his feet for long periods of time at work. He reported that pain worsened as the day went on, though he also reported awakening with chronic pain. The examiner noted that the Veteran’s life and physical activities were “under full moderation” due to back pain. The Veteran reported that special shoes ameliorated his pain for about three months before they required replacement, and that a “recurrent flare-up” was a predictor that the shoes needed replacement. The examiner noted a history of fatigue, decreased motion, stiffness, weakness, spasms, and centralized pain, which was “insidious,” present on awaking and brought on by prolonged sitting and standing. The pain was further described as moderate, constant, and daily. The examiner indicated there were no flare-ups. The Veteran endorsed use of orthotic inserts and a low back brace, and he reported being able to walk more than a quarter of a mile, but less than one mile. Physical examination revealed normal posture and normal gait, but the examiner found evidence of lumbar flattening. Examination revealed guarding, pain with motion, tenderness, and weakness. Range of motion testing revealed flexion to 60 degrees, extension to 5 degrees, left lateral flexion to 10 degrees, left lateral rotation to 10 degrees, right lateral flexion to 10 degrees, and right lateral rotation to 10 degrees, for a combined range of motion of 105 degrees. There was objective evidence of pain on active range of motion. The Veteran reported he was still working full-time at Home Depot but noted that his back disability significantly affected his occupation due to decreased mobility and problems with lifting and carrying. The Veteran also reported significant effects on his activities of daily living. There was no evidence of ankylosis. The Veteran underwent another VA examination in August 2013. The examiner diagnosed lumbar degenerative disc disease and thoracolumbar scoliosis. The Veteran reported experiencing flare-ups that impact the function of his spine, the most recent of which was seven months prior, in February 2013, when he required more than 24 hours bedrest due to incapacitation, “rising only for toileting and meals.” Range of motion testing revealed flexion to 45 degrees with objective evidence of painful motion beginning at 45 degrees. The examiner noted functional loss with contributing factors of less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. Localized tenderness was noted at L4-L5, and the Veteran was found to have guarding or muscle spasm that did not result in altered gait or spinal contour. The examiner noted that the Veteran had IVDS but did not have any incapacitating episodes over the previous 12 months. The Veteran’s lumbar disability impacted his ability to work by interfering with bending, lifting, squatting, and kneeling, as well as his ability to climb ladders. The Veteran was afforded another VA examination in December 2016. The examiner noted that the Veteran was in an “acute flare” on the day of the examination and had been seen in the past week by his primary care physician for management with muscle relaxants and NSAIDS. The Veteran also reported use of local heat and back support. The Veteran reported “multiple flares” in the past six months. He reported functional loss or impairment of the spine consisting of decreased range of motion and stated he could not do any bending on the day of the examination due to pain. Range of motion testing revealed forward flexion to 40 degrees. The examiner found no evidence of ankylosis of the spine. The Veteran was most recently afforded a VA examination in May 2019. The Veteran reported pain with overuse and difficulty with lifting, pushing, pulling, bending, twisting, carrying, walking, running, and standing. Range of motion testing revealed forward flexion to 30 degrees. Pain was noted on examination and caused functional loss. The examiner found no evidence of ankylosis of the spine. The examiner noted that the Veteran had “severe” loss of mobility of the spine with considerable functional impairment on passive range of motion testing and was unable to complete active testing due to pain. Overall, the Board finds that the evidence of record shows that the currently assigned ratings adequately contemplate the Veteran’s lumbar spine disability symptoms from throughout the period on appeal. As previously discussed, a higher rating prior to February 10, 2010 would require forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis. The September 2007 examiner found the Veteran’s spine to be well aligned, and the Veteran was able to complete full range of motion testing, though increasing discomfort was noted with each repetition. A higher rating prior to February 16, 2016 would require forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. The February 2010 and August 2013 VA examinations revealed flexion to 60 degrees and 45 degrees, respectively, and there was no evidence of ankylosis. The Veteran reported flare-ups during this period, and the Board acknowledges that neither examiner attempted to estimate additional loss of function during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Veteran indicated that flare-ups occurred roughly every three months and served as an indicator that it was time to switch out his orthotic shoes. The Court of Appeals for Veterans Claims (Court) has found that increasing a rating based on symptoms two to four times per month would violate the rule regarding stabilization of ratings, which directs rating officials to effect the “greatest degree of stability of disability evaluations” when faced with fluctuating conditions. Tatum v. Shinseki, 23 Vet. App. 152, 158 (2009) (quoting 38 C.F.R. § 3.344). Given the reported frequency of flare-ups during this period, the Board finds that the currently assigned 20 percent rating adequately contemplates the Veteran’s symptoms. Finally, the Board notes that the Veteran is in receipt of a 40 percent rating for his low back disability from February 16, 2016, which is the maximum rating based on limitation of motion under Diagnostic Code 5242, and any higher rating would require evidence of ankylosis. As noted, there is no evidence the Veteran has had ankylosis of the spine at any point during the period on appeal. Therefore, a rating in excess of 40 percent is not warranted. 3. Left ankle disability prior to December 16, 2016 The Veteran seeks increased ratings for his left ankle lateral ligament insufficiency, currently rated noncompensable effective May 31, 2007 and 10 percent disabling effective February 24, 2010. The Veteran’s disability is rated under Diagnostic Code 5010-5271. 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. Diagnostic Code 5010 directs that arthritis due to trauma that is substantiated by X-ray findings be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. For the purpose of rating disability for arthritis, the ankle is considered a major joint. 38 C.F.R. § 4.45. Under Diagnostic Code 5271, ankle disability with moderate limitation of motion warrants a 10 percent rating. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Standard range of ankle dorsiflexion is from 0 to 20 degrees, and plantar flexion from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Here, the Veteran was initially afforded an examination in connection with his claim in September 2007. The Veteran reported two occasions in which his left ankle gave out on him, resulting in the need for crutches for several weeks along with ACE bandage support. Physical examination revealed that the appearance of both his right and left ankles was identical. Range of motion testing revealed 20 degrees of dorsiflexion of the left ankle, and 50 degrees of plantar flexion with 20 degrees of inversion and 30 degrees of eversion of the left hindfoot. There was no swelling. The examiner found no abnormal laxity in anterior drawer but did find excessive lateral ligament instability on inversion of the left ankle which was not present in the right ankle. The examiner also found tenderness of the lateral ligament complex of the left ankle, but the Veteran was able to heel walk and toe walk without difficulty. In her July 2009 letter, C.W. wrote that she witnessed the Veteran’s ankle give out, causing him to “land on the ground with a sprain or spasms.” The Veteran was afforded another VA examination in February 2010. The Veteran reported that his left ankle would give way without notice, leading to falls. He reported wearing a brace to give himself “a little confidence so that [he] is not afraid to walk. He otherwise reported progressively worsening symptoms and current treatment consisting of NSAIDS, limitation of activities, and steroid injections. The examiner endorsed deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation one to two times per year, no locking episodes, repeated effusions, and swelling. He reported being able to stand for more than one hour, but less than three; and able to walk more than a quarter of a mile, but less than one mile. The examiner observed that the Veteran’s disability caused an antalgic gait. On physical examination, the examiner did not find evidence of left ankle disability. Left ankle range of motion was normal but with objective evidence of pain with active motion. X-rays revealed evidence of an old injury of the navicular. The Veteran was afforded another VA examination in connection with his claim in February 2016. The Veteran reported that his disability had worsened since the last examination; specifically, he was inverting or rolling his ankle more frequently. He did not report flare-ups. Range of motion testing was all normal, but with pain noted on examination. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing. The examiner indicated the Veteran was not being examined immediately after repetitive use over time but provided that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner found evidence of ankle instability or dislocation. The examiner indicated that extended walking, particularly on uneven surfaces, would exacerbate symptoms, but otherwise there were no other functional limitations. Overall, the Board finds that the currently assigned ratings adequately contemplate the Veteran’s ankle disability symptoms for the period on appeal. Left ankle range of motion testing has been normal throughout the period on appeal. The evidence does not show that the Veteran experienced left ankle instability to a compensable degree prior to February 2010; after that point, the evidence indicates the Veteran’s symptoms were mild—commensurate with the currently assigned 10 percent rating. 4. Left knee disability prior to December 16, 2016 The Veteran seeks an increased rating for his left knee limitation of flexion, rated 10 percent disabling under Diagnostic Code 5260. He also seeks increased ratings for his left knee instability, however that claim will be discussed in the REMAND section, below. Under Diagnostic Code 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating when flexion is limited to 15 degrees. Under Diagnostic Code 5261 (limitation of extension of the leg), a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. There are other Diagnostic Codes potentially applicable to the Veteran’s claim. Under Diagnostic Code 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under Diagnostic Code 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a. In this case, the Veteran was first afforded an examination in connection with his knee claim in September 2007. The Veteran reported chronic problems of his left knee giving way and found it helpful to use “a Velcro fastened free motion semi-rigid knee support with patellar cutout,” which had reduced his episodes of giving way. The Veteran reported that he had avoided as much as possible any type of medical treatment and denied taking medication. Physical examination revealed “excellent strength of extension of both lower legs against resistance and demonstrated full extension to 0 degrees in both knees, along with active flexion to 140 degrees. There was no evidence of fluid present in either knee. The Veteran was afforded another VA examination in February 2010. The Veteran endorsed deformity, giving way, instability, pain, stiffness, weakness, incoordination, locking episodes of only one to three times per month, “repeated” effusions, and swelling affecting the motion of the joint. He denied episodes of dislocation or subluxation. Physical examination revealed mild anterior/posterior instability. Left knee flexion and extension were normal, but the Veteran exhibited objective evidence of pain following repetitive motion. There were no additional limitations after three repetitions of range of motion testing. Imaging testing results showed early osteoarthritic changes, though the patellar was in “good condition” and not joint effusion was seen. The Veteran was afforded another VA examination in August 2013. The examiner noted that the Veteran was wearing a brace on the left knee with a patellar cutout and lateral stabilizing rods. Left knee flexion ended at 60 degrees, with evidence of painful motion beginning at 60 degrees. Left knee extension was limited to 20 degrees, with evidence of painful motion beginning at 20 degrees. Pain and fatigue prevented the Veteran from performing repetitive use testing with three repetitions. The Veteran endorsed instability, and the examiner found evidence of moderate patellar subluxation and/or dislocation. The Veteran reported that his left knee instability caused him to lose a promotion in his previous job after it gave out during an interview walk-around. The Veteran was afforded another VA examination in February 2016. He reported worsening symptoms and indicated he was wearing a knee brace constantly due to instability. The Veteran did not report flare-ups of his knee disability. Left knee flexion and extension were to 110 degrees. Pain was noted on the examination; range of motion itself did not contribute to functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of range of motion. The examination was not completed immediately after repetitive use over time, but the examiner indicated the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner indicated no history of recurrent subluxation but a history of slight lateral instability in the left knee. The Veteran reported that extended walking, bending, kneeling, and climbing exacerbated his left knee symptoms. Overall, the Board finds that Veteran’s current left knee limitation of flexion is adequately contemplated by currently assigned 10 percent rating. As previously noted, a higher rating for his left knee limitation of flexion would require flexion limited to 30 degrees; at worst, the Veteran’s flexion was limited to 60 degrees during this period. However, the Board finds that a separate rating is warranted for limitation of extension, as the Veteran demonstrated left knee extension to 20 degrees during the August 2013 VA examination. Therefore, a separate 30 percent evaluation is warranted for limitation of extension from August 28, 2013, the date of the VA examination documenting limitation of extension, to December 15, 2016. A separate rating is not warranted prior to that date, as the evidence did not show limitation of extension during that time. The Board has further considered whether separate ratings are warranted under any other applicable diagnostic codes. As the record does not show that the Veteran had dislocated semilunar cartilage with frequent episodes of joint “locking” or effusion during the period on appeal, a separate rating under Diagnostic Code 5258 is not warranted. Further, the record does not show that the Veteran had removal of semilunar cartilage which was symptomatic. Therefore, a separate rating is likewise not warranted under Diagnostic Code 5259. 5. Left lower extremity scars prior to December 16, 2016 The Veteran seeks entitlement to higher ratings for residuals of a shrapnel wound to the left lower leg, currently rated noncompensable effective May 31, 2007 and 10 percent disabling effective February 23, 2010 under 38 C.F.R. § 4.118, Diagnostic Code 7804. He also seeks a higher rating for a service-connected residual scar, left knee patellar and tendon repair, rated noncompensable effective May 31, 2007 under Diagnostic Code 7805. The rating criteria used to evaluate scars were revised effective October 23, 2008. However, the revised criteria apply only to claims filed on or after October 23, 2008 unless the Veteran requests that the Agency of Original Jurisdiction (AOJ) review the claim under the 2008 revised criteria. Although the Veteran has not requested such review, the Board will consider the rating criteria effective both prior to and from October 23, 2008. Prior to and from October 23, 2008, Diagnostic Code 7800 addresses scarring of the head, face, or neck, while Diagnostic Code 7802 provides a 10 percent evaluation for scars with an area of 144 square inches (929 square centimeters) or greater. Neither of these criteria apply to the Veteran’s left lower extremity scars; therefore, they will not be discussed further. Prior to October 23, 2008, Diagnostic Code 7801 evaluated scars that were deep or caused limited motion, while from October 23, 2008, Diagnostic Code 7801 evaluates deep and nonlinear scars. There is no evidence that the Veteran has deep scars of sufficient size to warrant a compensable rating under Diagnostic Code 7801. Therefore, Diagnostic Code 7801 also will not be discussed further. Prior to October 23, 2008, Diagnostic Code 7803 provided a 10 percent rating for superficial, unstable scars. Note (1) indicated an unstable scar was one where, for any reason, there was frequent loss of covering of the skin over the scar. Note (2) indicated a superficial scar was one not associated with underlying soft tissue damage. Diagnostic Code 7803 was removed effective October 23, 2008. Prior to October 23, 2008, Diagnostic Code 7804 provided a 10 percent rating for a superficial scar that was painful on examination. From October 23, 2008, Diagnostic Code 7804 was revised to provide a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Prior to October 23, 2008, Diagnostic Code 7805 provided that scars, other, could be rated based on limitation of function of the affected part. Similarly, from October 23, 2008, Diagnostic Code 7805 provides that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 can be considered under another appropriate Diagnostic Code. As discussed herein, no higher rating is warranted in this case with consideration of the new criteria at any time since the effective date of the amendments. Consequently, discussion of retroactivity principles is unnecessary. Turning to the evidence, the Board notes that a September 2007 VA examination reported noted a “very small 1.5cm healed wound of entry in the lateral aspect of [the Veteran’s] left lower leg adjacent to the distal fibula with the wound being slightly depressed but nontender.” The examiner found no palpable indication of any retained metallic shrapnel fragments. The Veteran was afforded another VA examination in February 2010. The examiner described a 2.0 x 1.0 cm oval scar, depressed, without keloid on the lateral aspect of the Veteran’s left mid-leg. The scar was deep and there was slight tenderness on deep palpation. The examiner noted another scar on the left knee on the superior aspect extending toward the medial side of the knee. He described the scar as 2.0 x 2.0 cm in size and superficial, with some depigmentation. The scar was not tethered, had no keloid, and was not tender. The examiner further identified a 3.0 x 0.2 cm scar on the inferior aspect of the left patella extending obliquely downward and inward. The scar was superficial with no keloid, no tethering, and no tenderness. Finally, the examiner noted a 2.5 x 0.2 cm ovoid superficial scar on the inferior aspect of the left patella. The scar had some depigmentation but no tethering, no keloid, and no tenderness. Overall, the examiner found that the scars themselves did not make a significant contribution to the Veteran’s disability except for the intermittent recurrent nocturnal crampy pain in the left calf. The Veteran was afforded another VA examination in February 2016. The Veteran reported intermittent throbbing of the left lower extremity scar at rest with no inciting incident; he did not specify which scar. None of the Veteran’s scars were painful or unstable. The examiner described a superficial non-linear scar on the Veteran’s left lower leg above the ankle, 1.0 x 2.0 cm in size. The examiner also noted a superficial non-linear scar on the Veteran’s left lower extremity, 2.0 x 2.0 in size. None of the scars impacted the Veteran’s ability to work. Overall, the Board finds that higher ratings are not warranted during the period on appeal under either Diagnostic Code 7804 or 7805. Prior to February 2010, the VA examination report and medical treatment records associated with the record are silent for reports of painful or unstable scars. The scar observed during the September 2007 VA examination was found to be “slightly depressed but nontender.” The VA examinations performed in February 2010 are similarly silent for reports of painful or unstable scars, though one scar was found to be slightly tender on deep palpation, and the Veteran reported experiencing intermittent throbbing. However, the record is otherwise silent for reports of painful or unstable scars, and the Board does not find that any other diagnostic code is for application in this case. Therefore, increased ratings for the Veteran’s scars are not warranted under either Diagnostic Code 7804 or 7805. REASONS FOR REMAND Although the Board regrets the delay, the Veteran’s claim for increased ratings for left knee instability prior to December 16, 2016 must be remanded for a retrospective medical opinion to adequately determine the severity of the Veteran’s disability during that period. The Veteran’s left knee instability is currently evaluated under Diagnostic Code 5257, which assigns based on whether the symptoms are “slight,” “moderate,” or “severe.” 38 C.F.R. § 4.71a. The September 2007 VA examiner noted tenderness over the medial collateral ligament insufficiency of the Veteran’s left knee and diagnosed “[o]pen wound combat incurred, medial aspect of left knee, with chronic medial collateral ligament and anterior cruciate instability.” The August 2013 VA examiner noted that the Veteran was wearing a brace on the left knee with a patellar cutout and lateral stabilizing rods. Though both examiners noted left knee instability, neither characterized the instability as “slight,” “moderate,” or “severe,” and it is difficult for the Board to make such a determination based on the evidence. Therefore, a retroactive opinion is warranted to determine whether the Veteran’s left knee instability was best described as “slight,” “moderate,” or “severe” during the specific period under review (i.e. May 31, 2007 to December 16, 2016). Accordingly, the matter is REMANDED for the following actions: 1. Provide the Veteran’s claims file to an examiner with the expertise necessary to render a retrospective medical opinion regarding the nature and severity of the Veteran’s left knee instability during the period between May 31, 2007 to December 16, 2016. Based on the information available in the claims file and VA examination reports of record during that period, the examiner should indicate whether the instability was slight, moderate, or severe. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. (Continued on the next page)   2. Then, readjudicate the claim on appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond. Then, if necessary, return the case to the Board for further appellate review. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, Associate Counsel 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.