Citation Nr: 21063464 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 14-17 206 DATE: October 14, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right ankle limitation of motion is denied. Entitlement to a disability rating in excess of 20 percent for right ankle instability is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for left knee instability is remanded. Entitlement to a disability rating in excess of 10 percent for painful left knee limitation of motion is remanded. FINDINGS OF FACT 1. The Veteran's right ankle disability has manifested in no more than moderate limitation of motion, with dorsiflexion to 10 degrees at worst and plantar flexion to 30 degrees at worst. 2. The Veteran's right ankle disability manifests in moderate instability CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right ankle limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5299-5262 (effective prior to and from February 7, 2021). 2. The criteria for a disability rating in excess of 20 percent for right ankle instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5271 (effective prior to and from February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1996 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board denied a disability rating in excess of 10 percent for left knee instability, granted a separate 10 percent disability rating for painful left knee limitation of motion, and replaced a 10 percent disability rating under Diagnostic Code 5271 with a 20 percent disability rating under Diagnostic Code 5262 for a right ankle disability. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the January 2020 decision. The Court granted the JMR in a May 2021 order, leaving the Board's determinations that were favorable to the Veteran undisturbed. As such, the matters are back before the Board. Increased Rating A disability rating is determined by the application of VA's 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to a disability rating in excess of 10 percent for right ankle limitation of motion is denied. 2. Entitlement to a disability rating in excess of 20 percent for right ankle instability is denied. By way of history, the Veteran submitted a claim for an increased disability rating for his right ankle sprains in September 2010. In a September 2011 rating decision, the Veteran's disability was increased from noncompensable to 10 percent, effective September 30, 2010. The Veteran disagreed with the rating assigned and ultimately appealed to the Board. In a January 2021 decision, the Board determined that the Veteran's right ankle sprains, evaluated under Diagnostic Code 5271 for limitation of motion, would be more appropriately evaluated by analogy under Diagnostic Code 5262, for impairment of the tibia and fibula, as the Veteran also experienced instability of the right ankle. Therefore, the Veteran's 10 percent disability rating under Diagnostic Code 5271 was replaced by a 20 percent disability rating under Diagnostic Code 5262. The Veteran appealed the Board's January 2021 decision to the Court and in May 2021, the Court vacated the Board's decision (but left the Board's decision to increase the Veteran's rating to 20 percent undisturbed), finding that the Board had not adequately explained why the Veteran was not entitled to compensation under both Diagnostic Codes 5262 and 5271. Upon review of the matter, the Board finds that the Veteran is indeed entitled to a 10 percent disability rating under Diagnostic Code 5271 and a 20 percent disability rating under Diagnostic Code 5262. However, the Board also finds that the assignment of higher ratings is not warranted. The Board notes that, during the pendency of the appeal, VA revised the rating criteria for Diagnostic Codes 5262 and 5271 effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110(g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria, Diagnostic Code 5262 compensates impairment of the tibia and fibula with a 10 percent rating for malunion of tibia and fibula with slight knee or ankle disability; a 20 percent rating for malunion of the tibia and fibula with moderate knee or ankle disability; a 30 percent rating malunion of the tibia and fibula with marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The revised criteria for Diagnostic Code 5262, effective February 7, 2021, evaluates impairment of the tibia and fibula. A noncompensable rating is assigned for medial tibial stress syndrome (MTSS) or shin splints requiring treatment for less than 12 consecutive months of one of both lower extremities. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either show orthotics or other conservative treatment of one or both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment of both lower extremities. A 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula must be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Under the former rating criteria, Diagnostic Code 5271 compensates moderate limited motion of the ankle with a 10 percent rating and marked limited motion of the ankle with a (maximum) 20 percent rating. Under the revised rating criteria, effective February 7, 2021, Diagnostic Code 5271 assigns a 10 percent rating for limited motion of the ankle that is moderate (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) and a 20 percent rating for limited motion of the ankle that is marked (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Normal range of motion of the ankle is from 0 to 45 degrees plantar flexion, and 0 to 20 degrees ankle dorsiflexion. See 38 C.F.R. § 4.71, Plate II. The terms "slight," "moderate," "and marked" as used in the various diagnostic codes prior to February 7, 2021 are not defined in VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Based on the evidence of record, the Board finds that higher disability ratings for the Veteran's right ankle disability are not warranted, as the criteria for more severe ratings have not been met. The evidence does not show that the Veteran suffers from marked limited motion of the right ankle to warrant a higher rating under the former criteria for Diagnostic Code 5271, nor does the evidence show that limitation of motion of the Veteran's right ankle results in less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion, as required by the revised rating criteria. Specifically, an October 2010 VA examination reflected right ankle dorsiflexion to 15 degrees and plantar flexion to 45 degrees with fill inversion and eversion. No further loss in function was noted following repeated use after three repetitions. Gait was normal. A June 2014 VA examination reflected right ankle dorsiflexion to 20 degrees with no objective evidence of painful motion and plantar flexion to 45 degrees with no objective evidence of painful motion. There was no additional loss in range of motion following repetitive use testing. A September 2019 VA examination reflected right ankle dorsiflexion to 15 degrees and plantar flexion to 40 degrees. There was no additional functional loss or loss in range of motion following repetitive use testing. Pain, fatigue, weakness, and lack of endurance with repeated use over time and during flare ups resulted in right ankle dorsiflexion to 10 degrees and plantar flexion to 30 degrees. Treatment records similarly do not reflect marked limited motion of the Veteran's right ankle, or less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion of his right ankle. The evidence also does not show a marked ankle disability or nonunion of the tibia and fibula to warrant a higher rating under the former criteria for Diagnostic Code 5262. The Board notes that the revised criteria for Diagnostic Code 5262 does not offer any amendments to the criteria that would afford the Veteran's right ankle disability a higher rating. The Board acknowledges the Veteran's lay reports of rolling his right ankle and feelings of instability; however, his right ankle disability does not result in symptoms more nearly approximating a marked ankle disability. In this regard, January 2009 imaging studies revealed a normal right ankle. The October 2010 VA examination noted that the Veteran reported frequent rolling of the ankle. He rated his usual ankle pain a 2/10 that could flare to an 8/10 about once a month if he rolled his ankle. The Veteran noted that his pain would last a few hours and was relieved by stretching and gentle walking. He wore an ankle brace occasionally. The examination noted that the Veteran's right ankle disability had no effect on his activities of daily living or his occupation as a full-time student. The Veteran did note pain with jogging and prolonged walking. Examination revealed no laxity, full gait, and normal squat. In the June 2014 VA examination, the Veteran reported his right ankle rolled easily with excessive activity. He used a brace occasionally to protect his ankle but could have mild pain without it. The Veteran had normal muscle strength and laxity in the right ankle. No ankylosis was noted. The VA examiner noted that the Veteran was able to do heavy level physical work per the Dictionary of Occupational Terminology standards. In the September 2019 VA examination, the Veteran reported persistent right ankle pain, rolling of the ankle, and that it would give out randomly. He wore an ankle wrap for treatment. The Veteran reported he could not walk more than three miles or walk on uneven surfaces. Examination revealed normal muscle strength and laxity in the right ankle compared to the opposite side. The Board finds that the Veteran's right ankle disability has not shown to be so severe or intense that it inhibits most functions. For example, the Veteran is generally capable of walking and standing, and engaging in routine activities, even if he is not able to do so for a prolonged period of time or distance. The evidence indicates that the Veteran's right ankle disability does not prohibit activities of daily living. Therefore, the Board reasonably concludes that there is not limitation that is so distinctive or emphasized that it approximates a marked disability as contemplated by Diagnostic Code 5262. The Board has considered whether higher disability ratings are warranted under 38 C.F.R. §§ 4.40 and 4.45 but finds that the record does not reflect additional functional loss due to pain, weakness, fatigability or incoordination severe enough to meet the criteria for a higher disability rating under Diagnostic Code 5271. While the Board finds that the Veteran is competent and credible in describing his pain and functional loss, the Board places greater probative weight on the objective medical findings by skilled professionals, as their findings were based on the Veteran's history, his statements, and examination. As indicated above, these medical findings do not support higher disability ratings for the Veteran's right ankle disability. In sum, the Board finds that the Veteran is entitled to compensation for his right ankle disability under both Diagnostic Code 5262 for instability and Diagnostic Code 5271 for moderate limited motion. However, the Board finds that the Veteran is properly compensated for his right ankle disability with a 20 percent rating under Diagnostic Code 5262 and a 10 percent rating under Diagnostic Code 5271 and higher ratings are not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee instability is remanded. 2. Entitlement to a disability rating in excess of 10 percent for painful left knee limitation of motion is remanded. The Board finds that additional development is necessary before a decision may be rendered regarding the issues on appeal. In Correia v. McDonald, 28 Vet. App. 158, 169- 170 (2016), the United States Court of Appeals for Veterans Claims (Court) held that an adequate VA examination of the joints must, wherever possible, include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and with range-of-motion measurements of the opposite undamaged joint. In this case, the Veteran was afforded a VA examination to evaluate his left knee disability in September 2019. On examination, the VA examiner noted pain on passive range of motion and on non-weightbearing range of motion; however, the examiner failed to include range of motion measurements as requested. As such, the Board is unable to make an informed determination regarding the severity of any functional loss associated with the Veteran's left knee without information regarding the extent range of motion is affected by pain on passive range of motion testing and on non-weightbearing testing. Remand for a new VA examination is required to cure these deficiencies. Additionally, the September 2019 examiner indicated that the Veteran had no history of left knee recurrent subluxation or lateral instability. However, the evidence of record documents complaints of instability. Specifically, in the January 2014 DRO hearing, the Veteran's wife testified that the Veteran had fallen before because of his left knee and the Veteran testified that his knee would buckle and give out at times. Further, a June 2014 VA examination indicated that the Veteran had left knee medial-lateral instability. Therefore, on remand, the examiner should address the Veteran's symptoms of left knee instability. Finally, while on remand, the examiner should address a note by the June 2014 VA examiner assessing mild pseudo ligament laxity in the medial compartment due to mild cartilage loss due to the Veteran's original injury and ACL. Contrary to the examiner's findings, the September 2019 VA examiner indicated that the Veteran did not currently have, nor had he ever had, a semilunar cartilage condition. On remand, the examiner is asked to reconcile the findings of the June 2014 and September 2019 examiners. If the Veteran is found to have a semilunar cartilage condition, the examiner should indicate what symptoms, if any, are associated with the condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination to assess the orthopedic manifestations of his left knee disabilities. The Veteran's electronic claims file must be made available for review. All testing deemed necessary to rate the Veteran's left knee disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weightbearing. The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain; it is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. Testing should be conducted, and results provided, for the opposite joint, unless the opposite joint is damaged. If the opposite joint is determined to be damaged, and no range of motion testing is conducted, this must be explained in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. The examiner should express an opinion as to whether pain or other manifestations during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range-of-motion loss due to pain on repeated use or during flare-ups. If no estimate can be provided, the examiner should provide a sufficiently detailed explanation as to why. The examiner should address the evidence of record, specifically the Veteran's lay statements and the June 2014 VA examination, that indicates the Veteran may suffer from left knee instability. The examiner should note the findings of the June 2014 VA examiner ("mild pseudoliglaxity in the medial compart. due to mild cart loss there due to the orig injury and ACL") and reconcile it with the findings of the September 2019 VA examiner (indicating that the Veteran does not, and has not ever had, a semilunar cartilage condition). If the Veteran is found to have a semilunar cartilage condition, the examiner should indicate what symptoms, if any, are associated with the condition. A rationale for the opinions in the examination report must be provided. (Continued on the next page) 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.