Citation Nr: 21061320 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 10-37 349 DATE: October 1, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right ankle sprain is denied. Entitlement to an initial rating in excess of 10 percent for left knee sprain is denied. FINDINGS OF FACT 1. The Veteran's right ankle disability is manifested by no more than moderate limited motion of the ankle. 2. The Veteran's left knee strain has been manifested primarily by pain and decreased flexion to no less than 45 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for an initial rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2005 to October 2009. The Veteran died in August 2020. The appellant has been substituted in this appeal. In November 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2015, March 2018, and April 2020, the Board remanded the claim for further development. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 1. Entitlement to a rating in excess of 10 percent for right ankle disability The Veteran's right ankle disability is rated under DC 5271. Under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is warranted for marked limitation of motion. The standardized description of joint measurement is provided in Plate II under 38 C.F.R. § 4.71. Normal dorsiflexion of the ankle is from zero to 20 degrees. Normal plantar flexion of the ankle is from zero to 45 degrees. Words such as "moderate" and "marked" are not defined in the VA Schedule of Rating Disabilities. Use of terminology such as severe by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. The VA Adjudication Procedures Manual, M21 shows examples of moderate and marked limitation of motion of the ankle under DC 5271. An example of moderate limitation of ankle motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. An example of marked limitation of motion is less than five degrees dorsiflexion or less than 10 degrees planar flexion. M21 II.iv.4.A.3l. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Analysis The Veteran stated that his disability is more severe than the rating depicts. In September 2009, the Veteran was afforded a VA examination to determine the nature and etiology of his right ankle disability. The Veteran stated that he rolled his right ankle in April 2009 while he was serving at Camp Lejeune. He sought treatment and was told he had a stage IV sprain. He stated that he continued to have pain, instability, and swelling. Since onset, the condition had gotten worse. The examiner diagnosed the Veteran with chronic right ankle strain. The Veteran experienced pain, stiffness, and swelling of the ankle. His gait was normal. The examiner noted swelling, effusion, tenderness, or laxity in the Veteran's ankle. Additionally, there was evidence of crepitus, tenderness, pain at rest, and weakness. The Veteran did not have ankylosis or other objective joint abnormality. There was also no evidence of arthritis, ankle instability, or tendon abnormality. The examiner noted evidence of crepitus, tenderness, pain at rest, and weakness. Left ankle dorsiflexion was from zero to 20, 20, and 20 degrees. Left plantar flexion was from zero to 45, 45, and 45 degrees. There was no objective evidence of pain with active motion on the left. Right ankle dorsiflexion was from zero to 15, 15, and 15 degrees. Right plantar flexion was from zero to 40, 40, and 40 degrees. The examiner noted objective evidence of pain with active motion on the right. Bilaterally, there was objective evidence of pain following repetitive motion. There were no additional limitations after three repetitions of range of motion (ROM) testing. X-rays revealed no acute fracture. Alignment and mineralization were normal. The Veteran's disabilities had significant effects on his ability to work. The Veteran had problems with lifting and carrying, difficulty reaching, and weakness or fatigue. On January 14, 2010, the Veteran was afforded another VA examination to determine the nature and etiology of his foot condition. The examiner noted the Veteran's active and passive ankle dorsiflexion of 10 degrees, active plantar flexion of 30 degrees, and passive plantar flexion of 40 degrees. The examiner noted no pain. In a January 29, 2010 statement, the Veteran stated that his right ankle was chronically unstable and gave out when he walked. In November 2011, the Veteran was afforded a VA examination to determine the severity of his right ankle disability. The Veteran stated that his ankle condition was stable. The examiner confirmed the Veteran's right ankle strain diagnosis. The Veteran stated, when he was active, he experienced flare-ups. Right ankle plantar flexion was from zero to 35 degrees with objective evidence of painful motion beginning at 35 degrees. Right ankle dorsiflexion was from zero to 15 degrees with objective evidence of painful motion beginning at 15 degrees. Left ankle plantar flexion was from zero to 45 degrees with no objective evidence of painful motion. Left ankle dorsiflexion was from zero to 20 degrees or greater with objective evidence of painful motion beginning at 20 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions. There was no change in ROM after three repetitions. The Veteran did not have additional limitation in ROM of the ankle following repetitive-use testing. He experienced functional loss and/or functional impairment of the right ankle. The functional loss and/or functional impairment included weakened movement and pain on movement. He had localized tenderness or pain on palpation of joints/soft tissue of the right ankle. His left ankle muscle strength testing was normal. However, his right ankle muscle strength testing revealed active movement against some resistance for both the plantar flexion and dorsiflexion. There was no joint instability or ankylosis. The Veteran did not now have or ever had "shin splints", stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus) nor had the Veteran had a talectomy (astragalectomy). He did not have a total ankle joint replacement or scars (surgical or otherwise) related to his condition or to the treatment of his condition. He did not use an assistive devise as a normal mode of locomotion. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran's ankle condition did not impact his ability to work. During his November 2017 Board hearing, the Veteran stated that his right ankle hurt and every once in a while, it gave out. He also had issues moving his ankle from left to right. However, at the time of the hearing, he was not receiving treatment for his condition. The Veteran stated that his ankle did not lock. In an April 2020 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the current severity of his disability. Unfortunately, prior to scheduling the exam, VA received a Report of First Notice of Death indicating that the Veteran had died. Based on the evidence of record, the Board finds that a rating in excess of 10 percent rating is not warranted for the Veteran's right ankle disability. The Board notes that, at worse, the Veteran's plantar flexion was to 30 degrees and dorsiflexion to 10 degrees. The Board finds that the Veteran's plantar flexion and dorsiflexion do not approximate marked limitation. As such, the criteria for a disability rating in excess of 10 percent under DC 5271 is not met. The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the DCs. "Functional loss" may occur as a result of weakness or pain on motion. Here, the evidence shows that pain has been a constant and predominant symptom. There was also reported weakened movement, giving way, evidence of crepitus, tenderness, pain at rest, and weakness. However, given the extent of ankle motion, there is no evidence of a disability picture that is commensurate to a limitation of flexion to the extent necessary to establish entitlement to a higher disability rating, even after taking his reported pain, weakened movement, evidence of crepitus, tenderness, and weakness into full consideration. See DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5271. The Board has also considered whether an increased disability rating may be assigned under alternative DCs pertaining to disability of the ankle. Diagnostic code 5270 and 5272 apply to disabilities involving diagnosis of ankylosis. Diagnostic code 5273 applies to calcis or astragalus and DC 5274 applies to astragalectomy. As these conditions are not shown or alleged, DCs 5270, 5272, 5773, and 5274 do not apply in this matter. Additionally, the examiner noted that the Veteran did not have scars related to his ankle disability. Therefore, separate ratings under DC 7800-7805 are not warranted. The Board has considered the Veteran, the appellant, and the representative's statements regarding the severity of the Veteran's right ankle disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners' opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners' findings and the other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran's right ankle disability. As such, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). 2. Entitlement to an initial rating in excess of 10 percent for left knee disability The Veteran's left knee disability is rated under DC 5260. Under 38 C.F.R. § 4.71a, DC 5260, limitation of flexion, flexion limited to 30 degrees warrants a 20 percent rating and flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension, extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, DC 5261. Under DC 5257, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a. Under DC 5258, a 20 percent rating is assigned for a knee with dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent evaluation for symptomatic removal of semilunar cartilage. Id. The normal ROM of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.7, Plate II. Analysis The Veteran stated that his disability is more severe than the rating depicts. In September 2009, the Veteran was afforded a VA examination to determine the nature and etiology of his left knee disability. The Veteran stated that his knee pain and stiffness began in 2007. He reported pain and frequent popping under the knee. Since onset, the condition had gotten worse. The examiner diagnosed the Veteran with chronic left knee strain with patellofemoral syndrome. The Veteran experienced pain, stiffness, and swelling of the knees. His gait was normal. The examiner noted swelling, effusion, tenderness, or laxity in the Veteran's knee. The Veteran did not have ankylosis or other objective joint abnormality, and there was also no evidence of arthritis. The examiner noted evidence of right knee crepitus, i.e., clicking and snapping and patellar abnormality, i.e., subpatellar tenderness. There was no evidence of bumps consistent with Osgood-Schlatter's disease, crepitation, mass behind the knee, grinding, meniscus abnormality, or instability. Left knee flexion was from zero to 125, 125, and 157 degrees. Right knee flexion was from zero to 115, 117, and 120 degrees. There was objective evidence of pain with active motion for both knees. Left and right knee extension was normal, i.e., to zero degrees. Bilaterally, there was objective evidence of pain following repetitive motion. There were no additional limitations after three repetitions of ROM of motion testing. X-rays revealed normal bony mineralization pattern. There was no evidence of fracture lucency, abnormal sclerosis or periosteal reaction. Joint spaces were symmetric, and well-preserved with no marginal osteophytes or erosive process. Soft tissues were unremarkable the width no radiopaque foreign bodies. There was no significant joint fluid collection and no focal acute osseous finding. In a January 2010 statement, the Veteran stated that his left knee was swollen more times than not. Additionally, he experienced sub-luxation. In November 2011, the Veteran was afforded a VA examination to determine the severity of his left knee disability. The Veteran stated that his left knee had become more painful, and he was unable to run like he before. The examiner confirmed the Veteran's left knee strain with patellofemoral syndrome diagnosis. The Veteran stated when he walked, his knees would flare-up. His right knee flexion was from zero to 140 degrees and extension was to zero degrees. There was no objective evidence of painful motion. Left knee flexion was from zero to 120 degrees with evidence of painful motion beginning at 120 degrees. Extension was to zero degrees. The Veteran was able to perform repetitive-use testing with three repetitions. He did not have additional limitation in ROM of the knee following repetitive-use testing. The Veteran had functional loss and/or functional impairment of the left knee, to include pain on movement. He did not have tenderness or pain to palpation for joint line or soft tissues of either knee. Bilaterally, joint stability testing was normal. The Veteran did not now have or had ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He did not have any meniscal conditions or surgical procedures for a meniscal condition, and he had not had a total knee joint replacement. There were no other pertinent physical findings, complications, conditions, signs, scars, and/or symptoms related to his condition or to the treatment of his condition. He did not use any assistive devices as a normal mode of locomotion. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. Imaging did not reveal degenerative or traumatic arthritis, x-ray evidence of patellar subluxation, or other significant diagnostic test findings and/or results. The Veteran's knee disability impacted his ability to work, i.e., when he used his knee excessively, it hurt. During his November 2017 Board hearing, the Veteran stated that while walking, his left knee would give out. When he was sitting and stretching, his knee would lock. The locking would last for longer than 10 minutes, and the locking could occur daily or weekly. The Veteran stated that the locking and giving out had been occurring for a year. He wore a brace; however, three to four months prior to the hearing, the Velcro on the brace stopped working, and he noticed an increase in instability in his knee. The Veteran stated that he was not receiving treatment for his condition. As noted above, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the current severity of his disability. Unfortunately, prior to scheduling the exam, VA received a Report of First Notice of Death indicating that the Veteran had died. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's left knee limitation of flexion is not warranted. There is no evidence that the Veteran has had limitation of flexion to 30 degrees or less. The record shows that, at worse, his left knee flexion was to no less than 120 degrees. As such, the criteria for a disability rating in excess of 10 percent under DC 5260 is not met. The Board also notes that the Veteran's extension was normal. Therefore, a separate or higher rating is not warranted under DC 5261. The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the DCs. "Functional loss" may occur as a result of weakness or pain on motion. Here, the evidence shows that pain has been a constant and predominant symptom. The pain affected his ability to run. However, given the extent of left knee motion, there is no evidence of a disability picture that is commensurate to a limitation of flexion or extension to the extent necessary to establish entitlement to a higher disability rating, even after taking his reported pain, locking, and giving way into full consideration. See DeLuca, 8 Vet. App. at 204 -07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5260. In this regard, the Board emphasizes that a 10 percent disability rating under DC 5260 already contemplates an otherwise non-compensable degree of limitation of motion verified by objective evidence of symptoms such as painful motion. Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that other criteria for rating knee disabilities are provided under DCs 5256 (ankylosis), 5257 (instability), 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint), 5259 (cartilage, semilunar, removal of, symptomatic), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum or traumatic genu recurvatum). The evidence does not show that the Veteran's left knee disability manifestations have included ankylosis, instability, a meniscus condition, shin splints, or genu recurvatum. In the absence of such manifestations, DCs 5256, 5257, 5258, 5259, 5262, and 5263 are inapplicable. Additionally, the Veteran did not have scars related to his disability. Therefore, separate ratings under DC 7800-7805 are not warranted. The Board has considered the Veteran, the appellant, and the representative's statements regarding the severity of the Veteran's left knee disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners' opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners' findings and the other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). In sum, the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran's left knee disability. As such, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.