Citation Nr: 20060448 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 15-42 603 DATE: September 14, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected right knee chondromalacia patella is denied. Entitlement to an initial rating in excess of 10 percent for service-connected right ankle closed fracture with open reduction and internal fixation (ORIF) is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s service-connected right knee chondromalacia patella has been manifested by, at worst, full extension and flexion functionally limited to 135 degrees with pain, but not ankylosis or frequent episodes of locking, pain, and effusion. 2. For the entire appeal period, the Veteran’s service-connected right ankle closed fracture with open reduction and internal fixation (ORIF) has been manifested by pain without limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected right knee chondromalacia patella have not been met. 38 U.S.C. § 1155; 38 C.F.R. § §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to an initial rating in excess of 10 percent for service-connected right ankle closed fracture with open reduction and internal fixation (ORIF) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271-5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1982 to September 1985. He was afforded a hearing before the undersigned in February 2019. A transcript of that hearing is of record. In a May 2019 decision, the Board remanded the issues on appeal for further development, specifically, to afford the Veteran a VA examination. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008). Here, the RO scheduled the Veteran for examinations for the issues on appeal and, following his failure to report for the examinations, readjudicated the claims based on the evidence in the record. The Veteran has not given good cause for his failure to appear. Thus, the Board finds that the RO substantially complied with the May 2019 remand directives. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations shall 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. When all the evidence is assembled, a determination will be made on the claim. Reasonable doubt will be resolved in favor of the Veteran. If there is a preponderance of the evidence against the claim, the claim will be denied. If the evidence supports the claim or is in relative equipoise, the Veteran will prevail. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to an initial rating in excess of 10 percent for service-connected right knee chondromalacia patella. The Veteran asserts that his service-connected right knee chondromalacia patella disability is more severe than his initial rating reflects. At his February 2019 hearing, the Veteran detailed that his right knee disability has worsened over time causing it to buckle and swell. Following his initial October 2013 claim, a June 2014 rating decision granted service connection with a non-compensable rating effective October 28, 2012. A subsequent July 2020 rating decision granted an increased rating of 10 percent effective October 28, 2012. His right knee disability is currently rated under Diagnostic Code 5260 for pain with limitation of motion. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § § 4.71, Plate II. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § § 4.14. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). A May 2014 VA examination report reflects the Veteran’s complaints of right knee pain as well as his report of anterior knee pain when walking and knee buckling due to pain. His right knee extension measured 0 degrees and flexion measured to 135 degrees. There was no loss of range of motion after repetitive testing. The examiner noted no instability or subluxation and no ankylosis. Medical treatment records and private medical records submitted reflect the Veteran’s continued reports of right knee pain but do not contain any range of motion measurements or instances of instability, subluxation, or ankylosis. Here, the Veteran’s right knee does not warrant a compensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261. A 10 percent rating for limitation of flexion requires flexion to be limited to 45 degrees and 10 percent rating for limitation of extension requires extension to be limited to 10 degrees. Here, the VA examination of record shows the range of flexion for the right knee is 135 degrees at worst, and the Veteran had no knee extension reduction of motion. As such, a compensable rating under Diagnostic Code 5260 and 5261 is not warranted. The evidence shows that Veteran has painful motion in his right knee. As such, a minimum compensable rating for the right knee has been assigned. As a 10 percent rating is already assigned for the right knee to compensate for the pain, a rating in excess of 10 percent for the right knee is not warranted in the absence of evidence showing that the limitation of range of motion has reached the level of the 20 percent rating. See Mitchell. The Board considered whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 based on his complaints of buckling and instability and finds that the evidence does not warrant a 10 percent rating under Diagnostic Code 5257 as no instability or subluxation was found in medical treatment records or VA examination reports during the appeal period. The Board also considered whether the Veteran was entitled to a separate rating based on the findings of a torn meniscus and related symptoms, including snapping, pain and tenderness. The Board finds, however, that a separate rating is not warranted under Diagnostic Codes 5258 or 5259. Regarding entitlement to a separate rating under Diagnostic Code 5258, neither the medical nor lay evidence documents recurrent effusion nor locking. The evidence overwhelmingly shows that he did not experience recurrent effusion or locking during the period on appeal as there was no evidence of recurrent effusion or locking of record. While pain has been related to the Veteran’s right knee disability, this symptom is not sufficient to warrant a separate rating under Diagnostic Code 5258 and is contemplated by his 10 percent rating based on painful limitation of motion. Accordingly, the Board finds that a separate rating is not warranted under Diagnostic Code 5258. The Board further finds that a separate rating is not warranted under Diagnostic Code 5259 because the evidence of record does not reflect that the Veteran has undergone meniscal surgery or removal. The Board additionally considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. § §§ 4.40 and 4.45. DeLuca, 8 Vet. App. 202. In making this determination, the Board considered the Veteran’s lay statements about his symptoms, VA examination report, and VA treatment records. While the record shows knee pain, the evidence does not show that his symptoms produce functional loss that is manifested by adequate evidence of disabling pathology for higher ratings. See 38 C.F.R. § § 4.40; Mitchell, 25 Vet. App. at 38. Indeed, the Veteran did not experience additional limitation of motion after repetitive use testing and his disability rating is already based on the extent to which his symptoms reduce range of motion and cause pain. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. However, to the extent that the Veteran argues his symptomatology is more severe than that shown at the VA examination, his statements must be weighed against the other evidence of record, and the specific examination findings of a trained health care professional is of greater probative weight than more general lay assertions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In light of the Veteran’s reported symptoms and the medical evidence, the Board finds that the Veteran is not entitled to higher ratings for his service-connected right knee disability. 2. Entitlement to an initial rating in excess of 10 percent for service-connected right ankle closed fracture with open reduction and internal fixation (ORIF). The Veteran asserts that his service-connected right ankle disability is more severe than his initial rating reflects. At his February 2019 hearing, the Veteran detailed that his right ankle disability was painful, and his right ankle range of motion was diminishing. Following his initial October 2013 claim, a June 2014 rating decision granted service connection with a non-compensable rating effective October 28, 2012. A subsequent July 2020 rating decision granted an increased rating of 10 percent effective October 28, 2012. His right ankle disability is currently rated under Diagnostic Code 5271-5003 based on arthritis with noncompensable limitation of motion. 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A 20 percent rating is warranted for marked limited motion of the ankle. Words such as “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Although the use of similar terminology by medical professionals should be considered, it is not dispositive to the issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 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, rate as 10 percent with x-ray evidence involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. A May 2014 VA examination report reflects the Veteran’s reports of pain and swelling at the right ankle when walking or with prolonged standing. The right ankle plantar flexion measured 45 degrees or greater without objective evidence of painful motion, and right ankle dorsiflexion measured 20 degrees or greater without evidence of painful motion. No functional loss or impairment, localized tenderness or pain on palpation, instability, or ankylosis of the right ankle was noted. The examiner noted upon review of right ankle x-ray that there was evidence of degenerative arthritis in the right ankle. Both private and VA medical treatment records confirm mild degenerative arthritis in the right ankle and reflect the Veteran’s continued reports of right ankle pain. Medical treatment records similarly fail to note functional loss or impairment, localized tenderness or pain on palpation, instability, or ankylosis of the right ankle. After review of the record, the Board finds that a rating in excess of 10 percent for the service-connected right ankle disability is not warranted. Based on the May 2014 VA examination, the Board finds that the Veteran’s right ankle disability has been manifested by arthritis with no limitation of motion. While the May 2014 VA examiner did not give an opinion as to the severity of the Veteran’s right ankle disability, the Veteran had normal range of motion with no pain noted on examination. The May 2014 VA examination report notes the Veteran’s subjective complaints of right ankle pain and swelling with walking or prolonged standing; however, the evidence of record does not indicate any range of motion impairment. As such, the limitation of motion is neither marked nor moderate under Diagnostic Code 5271. In an instance such as this, where the schedule does not provide a 0 percent evaluation for a diagnostic code, a 0 percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. However, because Diagnostic Code 5003 warrants a 10 percent evaluation for noncompensable limitation of motion, the Veteran is assigned this evaluation based on the objective x-ray evidence of arthritis with noncompensable limitation of motion. A higher evaluation of 20 percent under Diagnostic Code 5271 is not warranted because marked limitation of motion of the ankle has never been demonstrated, even as described by the Veteran. Moreover, the Veteran’s reports of pain and swelling most closely approximate a 10 percent evaluation under Diagnostic Code 5003. DeLuca, 8 Vet. App. 202. The VA examiner found no ankylosis, adhesions, instability, weakness, swelling, deformity, atrophy, or disturbance in locomotion. Further, there is no indication in either VA or private treatment records that the Veteran suffers from more than moderate limitation of the right ankle, even with consideration of pain. Accordingly, the Board does not find that the Veteran’s right ankle arthritis has more nearly approximated “marked” limitation of motion. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and decreased mobility. However, to the extent that the Veteran argues his symptomatology is more severe than that shown at the VA examination, his statements must be weighed against the other evidence of record, and the specific examination findings of a trained health care professional is of greater probative weight than more general lay assertions. See Jandreau, 492 F.3d 1372. In sum, the preponderance of evidence is against an initial rating in excess of 10 percent for right ankle degenerative arthritis. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.