Citation Nr: 20003757 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 13-10 501 DATE: January 16, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for recurrent right ankle sprain and avulsion fracture with degenerative joint disease and instability (a right ankle disability) is denied. Entitlement to a disability rating in excess of 10 percent for right knee laxity is denied. Entitlement to a disability rating in excess of 10 percent for left knee laxity is denied. Entitlement to a disability rating in excess of 10 percent for right knee chronic strain is denied. Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease (DJD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran’s service-connected right ankle disability has been manifested by no more than a limitation of motion without ankylosis. 2. For the period on appeal, the Veteran’s service-connected right knee laxity has been manifested by no more than slight instability. 3. For the period on appeal, the Veteran’s service-connected left knee laxity has been manifested by no more than slight instability. 4. For the period on appeal, the Veteran’s service-connected right knee chronic strain has been manifested by pain and limitation of flexion to no less than 50 degrees. 5. For the period on appeal, the Veteran’s service-connected left knee DJD has been manifested by pain and limitation of flexion to no less than 90 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for a service-connected right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5271. 2. The criteria for a disability rating in excess of 10 percent for service-connected right knee laxity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a disability rating in excess of 10 percent for service-connected left knee laxity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating in excess of 10 percent for a service-connected chronic right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 5. The criteria for a disability rating in excess of 10 percent for service-connected left knee DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from October 1981 to August 1990. This matter comes before the Board on appeal of December 2011 and November 2013 rating decisions by a Department of Veterans Affairs (VA) regional office RO). The Board remanded the issues to the RO for further development in March 2019 and they have since been returned for further appellate review. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2018 as to the issues on appeal herein. A transcript of the hearing is of record. The Board also notes that additional appeals were also previously remanded by the Board in two separate, February 2019 decisions, one of which was entitlement to a waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $11,164.27. Subsequent to the Board’s remand of this issue, the Veteran’s waiver request was approved by VA’s Committee on Waivers and Compromises. As such, his waiver claim is no longer on appeal. The additional claims subject to the Board’s other February 2019 remand, which included claims of entitlement to service connection for a low back and bilateral hip disabilities, as well as entitlement to an increased rating for a service-connected left ankle disability, were recently returned and decided by the Board in a separate decision issued on December 5, 2019. Thus, those claims are also no longer on appeal. Increased Ratings Disability ratings are determined by evaluating 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, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Service-connected right ankle disability. Service connection was granted for a right ankle disability in April 2009 and the Veteran was assigned an initial 20 percent disability rating. He filed a claim for an increased rating in January 2013, asserting that the severity of his disability had worsened. The Veteran’s service-connected right ankle disability is evaluated under Diagnostic Code 5271. 38 C.F.R. § 4.71a. Under Diagnostic Code 5271, a 20 percent rating contemplates moderate limitation of motion. While the Veteran is in receipt of the maximum benefit available for this diagnostic code, higher ratings are warranted under Diagnostic Code 5270 if ankylosis is shown. Under Diagnostic Code 5270, a 30 percent rating is warranted if ankylosis is shown in plantar flexion, between 30 and 40 degrees, or in dorsiflexion, between 0 (zero) and 10 degrees. Id. Normal ankle motion is measured from 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. Turning to the evidence, a VA examination was first afforded to the Veteran for his increased rating claim in October 2013. He reported constant pain, with flare-ups of pain with any weight bearing. Range of motion (ROM) testing revealed painful dorsiflexion to 10 degrees and painful plantar flexion to 30 degrees. An additional examination in June 2015 revealed improved ROM in the Veteran’s right ankle, with dorsiflexion to 20 degrees and plantar flexion to 45 degrees. ROM was not reduced after repetitive use testing during either examination, and ankylosis was not noted. Pursuant to the Board’s previous remand, an additional VA examination was afforded in August 2019, where he reported that his condition had gotten worse, with frequent ankle flare-ups several times per week. ROM testing was slightly reduced from normal, with painful dorsiflexion from 0 to 15 degrees and painful plantar flexion from 0 to 40 degrees. Again, range of motion was not reduced after repetitive use testing and ankylosis was not noted. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to his right ankle disability during any of the above VA examinations, and the Veteran’s medical treatment records are not in significant conflict with the examination findings. As such, the Board finds the evidence is against a finding that a higher rating is warranted as ankylosis is not present. Since a 20 percent disability rating is the highest evaluation possible for limitation of motion, further consideration of functional loss due to pain under 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995) is not required. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). 2. Service-connected bilateral knee disabilities. The Veteran is currently in receipt of four separate disability ratings for bilateral knee disabilities – separate 10 percent ratings for bilateral laxity effective March 26, 2008, and separate 10 percent ratings for bilateral limitation of flexion effective August 5, 2008. He asserts that the severity of his knee symptoms warrants higher ratings. For the reasons that follow, the Board finds that the Veteran’s disability picture, to include his statements, does not more nearly approximate the degree required for higher or separate ratings for his bilateral knee disabilities. 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. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Additionally, ratings can be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case, the evidence does not reflect, nor has the Veteran alleged, that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Turning to the evidence, VA knee examinations relevant to the period on appeal were afforded to the Veteran in May 2008, October 2009, July 2011, August 2013, June 2015, and August 2019. First, and regarding the Veteran’s separate, 10 percent ratings for right and left knee laxity, no more than slight laxity was noted by the VA examiner in July 2011 during varus and valgus testing. No additional instability was indicated during any other examination, including most recently in August 2019. As such, a higher 20 percent rating is not warranted for his separately-assigned bilateral knee laxity. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. To the extent that the Veteran reported additional instability during the appeal despite the examination findings, to include the use of an assistive device for support, the Board notes there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals in this case during all VA examinations, and testing revealed no instability or laxity after the initial finding of slight laxity in 2011. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. While the Veteran may have experienced a feeling that his knees may give way or are unstable, if subluxation or lateral instability were present to a moderate degree, as required for a higher rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed or during treatment. Hence, the most probative evidence is against higher ratings for the Veteran’s right and left knee laxity. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Next, and as to his separate 10 percent ratings under Diagnostic Code 5260 for his right knee chronic strain and left knee DJD, higher, 20 percent disability ratings are not warranted during the period on appeal without flexion limited to at least 30 degrees. Here, while the Veteran’s ROM has decreased since his earlier VA examinations, flexion during the appeal has been no worse than 50 degrees in his right knee and 90 degrees in his left knee. The Board has considered whether a separate rating could be awarded based on limitation of extension; however, extension has been normal during the entire period on appeal. Thus, the Board finds that higher ratings for the Veteran’s right and left knee disabilities based on limitation of motion under Diagnostic Codes 5260 and 5261 are not warranted. 38 C.F.R. § 4.71a. During his VA examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The examination reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. Importantly, the Veteran was noted as having been examined during both a flare-up and after repetitive use over time during his most recent examination in August 2019, and flexion was observed to be reduced only to 90 degrees in each knee. To the extent the Veteran’s statements regarding his reduced functionality during repetitive use over time and during a flare-up may suggest additional reductions in range of motion, his statements do not suggest the requisite limitation of motion necessary for higher ratings, i.e., flexion reduced to at least 30 degrees, or extension reduced to at least 10 degrees. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. To the extent that any examination is deficient for not estimating additional loss of motion during flare-ups or after repeated use, the Board finds it unlikely that additional development would yield more specific findings or that any estimate offered in the abstract would have high probative value. ROM findings have been obtained during repetitive use over time and flare-up in August 2019, and it appears the Veteran’s knee disability has worsened since his earlier examinations rather than improved; hence, these measurements are highly probative. Moreover, contemporaneous treatment records do not show greater limitation of motion than the examination findings. Absent other competent evidence suggesting additional limitation of motion during flare-ups or after repetitive use over time, additional inquiry in this regard is unnecessary. While the Board acknowledges the Veteran’s use of assistive devices, which is not noted in Diagnostic Codes 5260 and 5261, the symptoms corrected/alleviated by using such have been addressed, and the Veteran’s medical treatment records and examinations describe the level of his disability when he is not using an appliance and those symptoms are contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Finally, the Board has considered whether a higher or separate disability rating is warranted under any other diagnostic code but has found none. While the Board acknowledges that the VA examiner most recently in August 2019 noted that there were degenerative signal intensity changes at the right medial meniscus, there is no competent evidence of dislocation or symptomatic removal of semilunar cartilage to warrant a separate rating under Diagnostic Codes 5258 or 5259 in either his medical treatment records or upon VA examination. 38 C.F.R. § 4.71a. Further, X-ray evidence during the appeal period has not revealed degenerative arthritis with involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, to warrant a 20 percent rating under Diagnostic Code 5003 for arthritis, degenerative. Id. In sum, the preponderance of the evidence is against a finding that the symptoms of the Veteran’s bilateral knee disabilities more nearly approximate the criteria for any higher or separate ratings during the period on appeal. Thus, the claims for increased ratings must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a. As to all of the Veteran’s above increased ratings claims, the Board is sympathetic to his lay statements that his disabilities are worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of a disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which these disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REASONS FOR REMAND While the Board regrets the additional delay, the issue of entitlement to a TDIU is remanded so the Agency of Original Jurisdiction can consider the effects of the Veteran’s newly-service-connected low back disability, bilateral hip disabilities, and lower extremity radiculopathy. The matter is therefore REMANDED for the following actions: Readjudicate the issue of entitlement to TDIU taking into consideration the newly service-connected disabilities. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.