Citation Nr: 21066620 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-23 887 DATE: November 1, 2021 ORDER Entitlement to service connection for sleep apnea is granted. A disability rating higher than 10 percent for chronic lumbosacral sprain with history of bruised coccyx (lumbar spine disability) prior to April 2, 2019 is denied. Effective April 2, 2019 a 40 percent disability rating, and no higher, for lumbar spine disability is granted. A disability rating higher than 10 percent for chronic sprain, right ankle (right ankle sprain) prior to April 2, 2019 is denied. Effective April 2, 2019 a 20 percent disability rating, and no higher for right ankle sprain is granted. A disability rating higher than 10 percent for chronic sprain, left ankle (left ankle sprain) prior to April 2, 2019 is denied. Effective April 2, 2019 a 20 percent disability rating, and no higher for left ankle sprain is granted. A disability rating higher than 10 percent for chronic left hip strain, claimed as left hip injury (left hip strain) is denied. Effective April 2, 2019 a 10 percent disability rating for left hip strain based on limitation of adduction is granted. A disability rating higher than 10 percent for left knee patellar tendonitis, claimed as left knee condition (left knee disability) is denied. FINDINGS OF FACT 1. The evidence reasonably establishes that the Veteran's diagnosed sleep apnea had its onset during his extensive period of military service. 2. Prior to April 2, 2019 the Veteran's lumbar spine disability was manifested by painful, but noncompensable levels of limitation of motion; it was not manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal, by ankylosis, or by incapacitating episodes of intervertebral disc syndrome (IDS) requiring bed rest as defined under VA law. 3. Effective April 2, 2019, the Veteran's lumbar spine disability has been manifested by chronic pain resulting in forward flexion to 25 degrees when considering additional functional loss and/or impairment but is not shown to result in ankylosis of the spine, or incapacitating episodes of IDS requiring bed rest as defined under VA law. 4. Prior to April 2, 2019 the Veteran's right ankle sprain was manifested by no more than moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) was not shown and there was no clinical evidence of ankylosis, malunion, or astragalectomy. 5. Effective April 2, 2019, the Veteran's right ankle sprain has been manifested by marked limitation of dorsiflexion when considering pain after repeated use over time and during flare-ups; there is no evidence of ankylosis, malunion of the os calcis, astragalus, or astragalectomy. 6. Prior to April 2, 2019 the Veteran's left ankle sprain was manifested by no more than moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion); marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) was not shown and there was no clinical evidence of ankylosis, malunion, or astragalectomy. 7. Effective April 2, 2019, the Veteran's left ankle sprain has been manifested by marked limitation of dorsiflexion when considering pain after repeated use over time and during flare-ups; there is no evidence of ankylosis, malunion of the os calcis, astragalus, or astragalectomy. 8. For the entire period on appeal, the Veteran's left hip strain has been manifested by painful, but noncompensable levels of limited flexion and extension even after considering additional functional loss and/or impairment. 9. Effective April 2, 2019, the Veteran's left hip strain manifests in limitation of adduction such that he cannot cross his legs when considering pain after repeated use over time and during flare-ups. 10. For the entire period on appeal, the Veteran's left knee disability has been manifested by painful but noncompensable levels of limited flexion and extension; there is no evidence of instability, ankylosis, dislocation of semilunar cartilage, or additional symptoms because of the removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for a disability rating higher than 10 percent for lumbar spine disability prior to April 2, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DCs) 5242-5243. 3. Effective April 2, 2019, the criteria for a 40 percent disability rating, but not higher, for lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5242-5243. 4. The criteria for a disability rating higher than 10 percent for right ankle sprain prior to April 2, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5271. 5. Effective April 2, 2019, the criteria for a 20 percent, but not higher, for right ankle sprain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5271. 6. The criteria for a disability rating higher than 10 percent for left ankle sprain prior to April 2, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5271. 7. Effective April 2, 2019, the criteria for a 20 percent, but not higher, for left ankle sprain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5271. 8. The criteria for entitlement to a disability rating higher than 10 percent for left hip strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.71a, DCs 5251, 5252. 9. Effective April 2, 2019, the criteria for a 10 percent rating, but not higher, for left hip strain based on limitation of adduction are met. 338 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.71a, DC 5253. 10. The criteria for a disability rating higher than 10 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71a, DCs 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to December 1986 and from May 1990 to May 2006. In June 2021 he testified at a virtual Board hearing. A transcript of the hearing is of record. Service Connection The Veteran seeks service connection for sleep apnea. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). At his hearing, the Veteran described the initial manifestations of sleep apnea as difficulty sleeping and daytime fatigue/sleepiness since he returned from Somalia. His wife testified describing her observations of his sleeping habits including snoring and pauses in breathing multiple times a night. See June 2021 Board hearing transcript. Service treatment records do not document complaints or findings suggestive of sleep apnea prior to the Veteran's separation from service in 2006. Sleep apnea was first diagnosed in 2013 following a sleep study. See VA Sleep Center Consult, dated August 29, 2013 Evidence against the claim includes an August 2015 VA medical opinion. The examiner concluded that the Veteran's sleep apnea was less likely as not related to service including Gulf War environmental exposures. It was explained that sleep apnea occurs when the muscles in the back of the throat relax too much to allow normal breathing. These muscles support structures including the soft palate, the uvulaa triangular piece of tissue hanging from the soft palate, the tonsils, and the tongue. When the muscles relax, the airway narrows or closes during breathing and breathing may be inadequate for 10 to 20 seconds. This results in the characteristic apneas and hypopneas caused by repetitive collapse of the upper airway during sleep. The examiner went on to note that risk factors for sleep apnea include obesity, a large neck, a narrowed airway, craniofacial and upper airway abnormalities, chronic nasal congestion, gender, advancing age, smoking, alcohol use, narcotic use, and family history. However, the medical literature does not mention the Gulf War environmental exposures as a cause or risk factor for sleep apnea. This makes sense considering that they would have no effect on the muscles of the airway resulting in sleep apnea. The examiner also noted that some of the risk factors are commonly experienced in everyday life and would make it more likely for the Veteran to have developed the sleep apnea condition. In determining whether service connection is warranted for disease or disability, VA must determine 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the evidence is at least evenly balanced regarding whether the Veteran's sleep apnea had its onset during military service. As noted, the VA examiner maintains that the Veteran's sleep apnea is not related to service. However, the Veteran and his spouse have offered supportive testimony regarding the onset of his sleep apnea during service. They are both competent to testify as to observable symptoms such as snoring, apnea, and daytime sleepiness. See Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). There is also no evidence in the record that contradicts their testimony or that makes it less trustworthy, so there is no reason to doubt their credibility in this regard. Therefore, there is probative value to their assertions that the symptoms the Veteran experienced during service have continued until he sought treatment and was diagnosed with sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, their statements are sufficient to establish the onset of symptoms to the time the Veteran was serving on active duty. Therefore, the benefit of the doubt is resolved in the Veteran's favor and service connection for sleep apnea is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating The Veteran seeks higher evaluations for his service-connected lumbar spine, bilateral ankle, left hip, left thigh, and left knee disabilities. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). lumbar spine The Veteran's lumbar spine disability is currently rated as 10 percent disabling under DC 5237. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Prior to the regulatory change under the General Rating Formula for Disease and Injuries of the Spine, lumbosacral or cervical strain is rated under DC 5237 and DC 5242 was applicable to degenerative arthritis of the spine. 38 C.F.R. § 4.71a. A 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 225 degrees; or when there is 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 appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation for forward flexion of the thoracolumbar spine of 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Any associated neurological abnormalities (e.g., bowel or bladder impairment) are evaluated separately under the appropriate diagnostic code. See Note 1. Normal forward flexion of the thoracolumbar segment of the 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 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine is unaffected by the February 7, 2021 regulatory changes. However, DC 5242 is expanded to include degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome. Prior to the regulatory change, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks in the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks in the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks in the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. As of February 7, 2021, under the amended criteria, DC 5243 is only assignable when there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 is to be assigned for all other disc diagnoses. The pertinent evidence in this case consists almost entirely of clinical findings from VA examinations in April 2017 and April 2019. When examined by VA in April 2017, the Veteran reported constant back pain back worse with bending, standing, walking. He denied numbness or tingling down the legs. He did not report flare-ups or functional loss/impairment of the thoracolumbar spine. Range of motion testing showed forward flexion to 70 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right rotation to 25 degrees, and left rotation to 20 degrees with pain but no additional limitation following repetitive testing. Passive range of motion could not be performed or was not medically appropriate. As the Veteran was not examined after repeated use over a period of time, the examiner stated they could not address whether pain, weakness, fatigability, or incoordination significantly limited functional ability without resorting to mere speculation. There were no additional contributing factors of disability and no objective evidence of localized tenderness/pain on palpation or pain with weight bearing. There was no guarding or muscle spasm resulting in abnormal gait or spinal contour. Muscle strength was normal at 5/5 with no atrophy. Reflexes were normal at 2+ and sensation was normal. Straight leg raising test was negative and there was no radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis or other neurologic abnormalities or findings such as bowel or bladder problems/pathologic reflexes. The Veteran did not have incapacitating episodes of IDS that required prescribed bed rest in the past 12 months, and he did not require assistive devices to aid with walking. The functional impact of the back condition was that the Veteran was precluded from lifting, walking/standing for longer than 30 minutes without a break. Subsequently dated treatment records show no indication of a worsening in range of motion or incapacitating episodes. There are also no neurological symptoms noted, no days of prescribed bed rest for intervertebral disc syndrome, and no findings or history to suggest any bladder or bowel dysfunction. The Veteran was most recently examined by VA in April 2019. He reported chronic low back pain and flare-ups of pain with prolonged standing, walking, and bending and that he wears a lumbar brace. He denied radiation of pain, numbness, and weakness in bilateral lower extremities as well as bowel/bladder dysfunction. Range of motion studies revealed forward flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral rotation to 10 degrees with no additional limitation following repetitive testing. Pain significantly limited functional ability with repeated use over time and during flareups with forward flexion limited to 25 degrees, extension to 5 degrees, lateral flexion to 5 degrees bilaterally, and rotation to 55 degrees bilaterally. There was no guarding or muscle spasm resulting in abnormal gait or spinal contour. Additional contributing factors of disability included disturbance of locomotion and interference with sitting and standing. The examiner was unable to test passive range of motion due to risk of injury to Veteran. The examiner was also unable to test the spine with non-weight bearing explaining that weight is applied even while at rest in all positions. Muscle strength was normal at 5/5 with no atrophy. Reflexes were normal at 2+ and sensation was normal. Straight leg raising test was negative and there was no radicular pain or other signs or symptoms due to radiculopathy. There was no ankylosis or other neurologic abnormalities or findings such as bowel or bladder problems/pathologic reflexes and the Veteran did not have incapacitating episodes of IDS that required prescribed bed rest in the past 12 months. Imaging studies showed mild spondylolisthesis of L4 over L5 with mild degenerative changes in the superior endplate of L4. The functional impact of the back condition was that the Veteran was limited in prolonged standing, walking, and bending but was able to do light duty work that was mainly sedentary. Subsequently dated treatment records show no indication of a worsening in range of motion or incapacitating episodes. There are also no neurological symptoms noted, no days of prescribed bed rest for intervertebral disc syndrome, and no findings or history to suggest any bladder or bowel dysfunction. After reviewing the record, and resolving all doubt in the Veteran's favor, the Board finds that a 40 percent evaluation is warranted as of April 2, 2019, the date of the most recent VA examination report. Both the medical evidence and the Veteran's subjective statements show the predominant symptom appears to be pain that increases with use. However, the first examination adequately estimating the effect of the disability during flare-ups and after repeated use over time was the April 2019 examination. Although the VA examiner found only minimal symptomatology, measurements taken during this examination show that the Veteran's thoracolumbar spine had forward flexion to 25 degrees which falls squarely within the criteria for a 40 percent schedular rating under DC 5237. Therefore, in the Board's view, these findings, when the benefit of the doubt rule is applied, a 40 percent evaluation affords a better approximation of the disability picture presented However, the Board finds that a disability rating greater than 40 percent is not warranted as examination findings would have to show unfavorable ankylosis of the entire thoracolumbar spine. The evidence of record including the most recent VA examination, contain no specific findings of ankylosis. So, while the Veteran may have very limited range of motion, there is no indication that he is unable to move his lumbar spine or that his spine was in a fixed position. 38 C.F.R. § 4.71a, General Formula, Note 5. Thus, the Board finds that the criteria for a 50 percent evaluation or higher are not met. As for the period prior to April 2, 2019, the Board concludes that the 10 percent rating is appropriate and fully contemplates the Veteran's lumbar spine disability. Measurements taken during the 2017 VA examination do not warrant a rating higher than 10 percent, as forward flexion of the thoracolumbar spine was not limited to 60 degrees or less. There was also no evidence of muscle spasm, guarding, localized tenderness, or vertebral body fracture. Given the evidence as outlined above, the Board finds that the 10 percent rating adequately reflects the Veteran's impairment due to the service-connected lumbar spine disability prior to April 2, 2019. With regard to both timeframes, VA must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, incoordination, and other factors. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given that prior to April 2019, the Veteran's complaints did not prevent him from achieving normal or near-normal range of motion of the lumbar spine, they do not support a finding of significant functional loss for a higher rating at that time. The Board also notes that since April 2, 2019, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and that a higher rating requires ankylosis. However, he has not described or presented evidence of any specific functional loss or impairment consistent with that contemplated by ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). (holding that the requirement of ankylosis in the context of a claim for an increased rating for the back can be demonstrated by evidence of the functional equivalent of ankylosis). The Veteran's measurable range of motion following repeated use over time and flare-up testing indicates the lumbar spine is not fixed in flexion or extension or in a neutral position (zero degrees). 38 C.F.R. § 4.71a, General Formula, Note 5. In addition, the Veteran has not indicated that his lumbar spine was limited to such a degree during flare-ups. So, while motion is significantly limited, neither the lay nor medical evidence reflects the functional equivalent of ankylosis warranting a rating higher than 40 percent. Additionally, increased evaluations are not warranted under the criteria for IDS, as there is no evidence of incapacitating episodes which required bed rest prescribed by a physician. The Board acknowledges the Veteran's account of chronic back pain. However, what is lacking is objective documentation that any physician prescribed bed rest or that the Veteran was treated by a physician for any period approaching a total duration of even one week during a 12-month period. Thus, increased evaluations under DC 5243 are not for assignment. See 38 C.F.R. § 4.71a. After resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence supports a 40 percent rating for his lumbar spine disability effective April 2, 2019 and prior to that date is most consistent with a 10 percent rating. 38 C.F.R. § 3.102. right and left ankles The Veteran's bilateral ankle disabilities are each evaluated as 10 percent disabling under DC 5271 for limited ankle motion. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110; Kuzma, 341 F.3d 1327. If the revised version is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. Prior to the regulatory change, a 10 percent rating is assigned for moderate limitation of motion of the ankle is moderate. A 20 percent evaluation is assigned for marked limitation of motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. The Board notes that the words "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, DC 5271 added objective criteria to define "marked" and "moderate" limitation of motion in relating to the severity of an ankle injury. "Moderate" limitation of ankle motion is defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion which qualifies for 10 percent disability rating. "Marked" limitation of ankle motion is defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion that qualifies for a 20 percent disability rating. Normal ankle dorsiflexion is to 20 degrees and normal plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II. In support of the Veteran's recent claim for increase is an April 2017 VA examination. He reported constant ankle pain and swelling that that worsens with activity but did not report flare-ups. On range of motion testing, there was 10 degrees of right ankle dorsiflexion and 30 degrees of plantar flexion. On the left there was 20 degrees of ankle dorsiflexion and 35 degrees of plantar flexion. Range of motion itself did not contribute to a functional loss and there was no additional loss of motion with repetitive-use testing. There was also no evidence of pain with weight bearing or on non-weight bearing and no objective evidence of localized tenderness/pain on palpation. Passive range of motion could not be performed or was not medically appropriate. Additional factors contributing to disability included less movement than normal disturbance of locomotion, and interference with standing. The examiner noted that as the Veteran was not examined after repeated use over a period of time, they could not address whether pain, weakness, fatigability, or incoordination significantly limited functional ability without resorting to mere speculation. Muscle strength was normal for both ankles at 5/5 with no reduction in strength. There was no evidence of joint instability, ankylosis, dislocation or atrophy. There was no history of shin splints, stress fractures, achilles tendonitis/tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). The Veteran wore an ankle brace occasionally to aid with walking. The ankle disabilities impacted ability to work in that he was limited in standing or walking for longer than 45 minutes without a break. Subsequently dated outpatient records are not materially different from those reported on the VA examination and show no indication of a worsening in range of motion or functional impairment to warrant a higher evaluation. When examined by VA in April 2019, the Veteran reported bilateral ankle pain with flare-ups due to prolonged standing, walking, and bending. Range of motion showed normal plantar flexion to 45 degrees and dorsiflexion to 10 degrees for both ankles there was no additional loss of function or range of motion after three repetitions. There was bilateral ankle pain with passive range of motion, weight bearing, and non-weight bearing which caused functional loss. The examiner noted pain caused additional loss of dorsiflexion to 5 degrees and slightly reduced plantar flexion to 40 degrees with repeated use over time and during flare-ups. Additional factors contributing to disability included disturbance of locomotion and interference with standing. Muscle strength was normal for both ankles at 5/5 with no evidence of atrophy, or ankylosis, but there was suspected laxity and ankle instability/dislocation. There was no history of shin splints, stress fractures, achilles tendonitis/tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy(astragalectomy). Imaging studies showed moderate to severe degenerative changes of the distal aspect of the tibia on the right. The left ankle showed no radiographic evidence of any acute soft tissue or bony pathology. The functional impact of the ankle condition included limited standing, walking, and bending. After reviewing the record, and resolving all doubt in the Veteran's favor, the Board finds that a 20 percent evaluation is warranted as of April 2, 2019, the date of the most recent VA examination report. Both the medical evidence and the Veteran's subjective statements show the predominant symptom appears to be pain that increases with use. However, the first examination adequately estimating the effect of the disability during flare-ups and after repeated use over time was the April 2019 examination. The measurements taken during this examination show 0 to 5 degrees of dorsiflexion during flare-ups and/or repetitive use over time, which is a 75 percent loss of dorsiflexion when compared with normal range of ankle dorsiflexion (0 to 20 degrees). Given this range of motion as well as the examiner's report of suspected bilateral ankle laxity/instability, the Board finds that 20 percent evaluations, under the more favorable criteria in effect prior to February 2021, afford a better approximation of the disability picture presented. As for the period prior to April 2, 2019, the Board concludes that the 10 percent rating is appropriate and fully contemplates the Veteran's bilateral ankle sprain disabilities. The worst recorded range of motion was during VA examination in 2017 with dorsiflexion to at least 10 degrees and plantar flexion to at least 30 degrees, with no loss of additional motion or diminished strength with repetitive testing. The examiner also noted that range of motion did not contribute to functional loss. There was also no ankylosis or instability in the ankle joint and neither ankle has required surgery. Given the evidence as outlined above, the Board finds that the 10 percent ratings adequately reflect the Veteran's impairment due to the service-connected right and left ankle disabilities prior to April 2, 2019. With regard to both timeframes, VA must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, incoordination, and other factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207; see also Mitchell, 25Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Although prior to April 2019, the Veteran's bilateral ankle disability was primarily manifested by pain, the VA examiner noted that it did not cause functional loss. Given that the Veteran's complaints did not prevent him from achieving normal and near-normal range of motion of either ankle, they do not support a finding of significant functional loss for a higher rating at that time. The Board also notes that since April 2, 2019, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and that a higher rating requires ankylosis under DC 5270. 38 C.F.R. § 4.71a. Ankylosis is the complete immobility of the joint in a fixed position, either favorable or unfavorable, due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The Veteran's measurable range of motion following repeated use over time and flare-ups testing indicates that neither ankle is fixed in plantar flexion or dorsiflexion. Further, the Veteran has not described or presented evidence of any specific functional loss or impairment consistent with that contemplated by ankylosis. See Chavis, 34 Vet. App. at 20. So, while motion is significantly limited, neither the lay nor medical evidence reflects the functional equivalent of ankylosis warranting a rating higher than 20 percent for ankylosis under DC 5270. The Board also finds that no other diagnostic code pertaining to the ankle would provide any higher evaluation. There is no evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy as contemplated by DCs 5272, 5273, and 5274. 38 C.F.R. § 4.71a. After resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence supports a 20 percent rating for the Veteran's bilateral ankle sprain disabilities effective April 2, 2019 and prior to that date is most consistent with a 10 percent rating. 38 C.F.R. § 3.102. hip and thigh There are several diagnostic codes that pertain to the individual planes of motion of the hip joint, rather than the hip as a whole. Thigh motion is affected by the hip joint. Limitation of motion of the thigh is evaluated under DCs 5251 (extension), 5252 (flexion), and 5253 (abduction, adduction, rotation). 38 C.F.R. § 4.71a. Normal flexion of the hip is to 125 degrees, normal extension is to 0 degrees, and normal abduction is to 45 degrees. Id., Plate II. The Veteran currently has a 10 percent rating for his left hip strain based on limitation of flexion under DC 5252 and a noncompensable rating (0 percent) for impairment of the thigh under DC 5253. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110; Kuzma, 341 F.3d 1327. If the revised version is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. Prior to the regulatory change, extension of the thigh limited to 5 degrees warrants a maximum 10 percent rating under DC 5251. 38 C.F.R. § 4.71a. Under DC 5252 limitation of thigh flexion to 45 degrees warrants a 10 percent evaluation. Thigh flexion limited to 30 degrees is 20 percent disabling; and limited to 20 degrees is 30 percent disabling. A maximum rating of 40 percent is reserved for when flexion is limited to 10 degrees. Id. Under DC 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Id. These diagnostic codes for limitation of motion are unaffected by the February 7, 2021 regulatory changes. Separate ratings may be assigned under DCs 5251, 5252, and 5253. See VAOPGCPREC 9-04. However, separate ratings for abduction, adduction, and/or rotation may not be assigned, as these are all evaluated under the same diagnostic code, DC 5253. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. The current 10 percent disability rating is based on findings from an April 2017 the Veteran reported hip pain that worsens with walking. There were no reports of no flare-ups or functional loss/impairment. Range of motion testing showed left hip flexion to 70 degrees; extension to 30 degrees; abduction to 40 degrees; adduction to 20 degrees, external and internal rotation were both to 35 degrees. Adduction was not limited such that the Veteran could not cross his legs. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion and range of motion did not contribute to functional loss. There was also no evidence of pain with weight bearing or on non-weight bearing and no objective evidence of localized tenderness/pain on palpation. Passive range of motion could not be performed or was not medically appropriate. The examiner noted that as the Veteran was not examined after repeated use over a period of time, they could not address whether pain, weakness, fatigability, or incoordination significantly limited functional ability without resorting to mere speculation. There were no additional factors contributing to disability. Muscle strength was normal at 5/5 for hip flexion and extension but normal at 5/5 for hip abduction. There was no evidence of atrophy or ankylosis and no additional conditions such as malunion/nonunion of the femur, flail hip joint, leg length discrepancy. There were no other pertinent physical findings, complications, conditions, signs or symptoms and the Veteran did not require assistive devices to walk. Subsequently dated outpatient records are not materially different from those reported on the VA examination and show no indication of a worsening in range of motion or functional impairment to warrant a higher evaluation. During a January 2019 examination for another disability, range of motion testing showed left hip flexion to 100 degrees, extension to 15 degrees, abduction to 30 degrees, and adduction to 20 degrees. External rotation was to 40 degrees and internal rotation to 25 degrees. Adduction was not limited such that the Veteran could not cross his legs. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner stated he could not address whether pain, weakness, fatigability, or incoordination significantly limited functional ability without resorting to mere speculation. It was explained that to be able to ascertain an objective assessment, the Veteran would need to be present and examined when weakness, fatigability or incoordination would potentially and significantly limit his functional ability with repeated use over time or flare-ups. Additional contributing factors of disability included disturbance of locomotion and interference with standing. Muscle strength was normal at 5/5 for hip flexion, extension, and abduction with no reduction in muscle strength or evidence of atrophy or ankylosis. There were no additional conditions such as malunion/nonunion of the femur, flail hip joint, leg length discrepancy. When examined several months later in April 2019 VA examination the Veteran's reports of hip pain and limited motion were unchanged. He described flare-ups pain with standing, walking, and bending. Range of motion testing showed left hip flexion to 80 degrees; extension to 15 degrees; and abduction to 30 degrees. External rotation was to 40 degrees and internal rotation to 25 degrees. Adduction was limited to 15 degrees such that the Veteran could not cross his legs. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion but there was evidence of pain on weight bearing and tenderness in the area of the anterior hip. There was hip pain with passive range of motion, weight bearing and non weight bearing. Pain further reduced flexion to 75 degrees, extension to 10 degrees, abduction to 25 degrees, and adduction to 10 degrees with repeated use over time and during flare-ups. External rotation was to 35 degrees and internal rotation to 20 degrees. Post-test adduction was limited such that the Veteran could not cross his legs. Additional contributing factors of disability disturbance of locomotion and interference with standing. Muscle strength was normal at 5/5 for hip flexion, extension, and abduction with no evidence of atrophy or ankylosis. There were no additional conditions such as malunion/nonunion of the femur, flail hip joint, leg length discrepancy and he did not require assistive devices to walk. Imaging studies showed no radiographic evidence of any bony or soft tissue pathology. The few treatment records associated with the claims file since the VA examination do not reflect a worsening in range of motion or functional impairment. The evidence does not demonstrate that a rating higher than 10 percent is warranted under DC 5252 at any time during the period on appeal. Although the Veteran has some loss of hip motion, even with complaints of pain, he did not exhibit limitation of flexion (to 30 degrees) or limitation of extension (to 5 degrees) sufficient to warrant an increased 20 percent or separate 10 percent evaluation under DCs 5252 or 5251, respectively. 38 C.F.R. § 4.71a. In fact, if strictly rated under these range-of-motion diagnostic codes, his left hip flexion and extension would warrant a noncompensable disability rating. The current 10 percent rating assigned reflects painful motion without a compensable limitation of motion under any of the relevant diagnostic codes. See 38 C.F.R. § 4.59 (allowing for assignment of the minimum compensable rating for functional loss due to painful motion). Although, the Veteran reports that activity is the precipitating factor for increased pain, there is insufficient evidence to show that any worsening due to repetitive use or flare-ups, would be severe enough to limit left hip motion to 30 degrees of flexion as required for a 20 percent rating under DC 5252. The functional impact as described by the Veteran and endorsed by the VA examiners in their opinions on functional limitations (e.g., limitations on standing and walking for prolonged periods) are consistent with the currently assigned 10 percent rating and do not warrant a higher rating based on functional impairment. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra; Mitchell, supra; Correia, supra; and Sharp, supra. However, based upon the preceding evidence, a schedular rating of 10 percent under DC 5253 is warranted from April 2, 2019. During the most recent VA examination, the examiner specifically found that the Veteran's adduction was limited preventing him from crossing his legs. The evidence does not show limitation of abduction such that motion is lost beyond 10 degrees as required for a 20 percent. 38 C.F.R. § 4.71a. After resolving any reasonable doubt in favor of the Veteran, the Board finds that the preponderance of the evidence supports a 10 percent rating for the Veteran's left thigh impairment effective April 2, 2019 and prior to that date is most consistent with a 0 percent rating. 38 C.F.R. § 3.102 The Board finds that no other diagnostic code pertaining to the hip would provide any higher disability evaluations. There is no evidence of ankylosis, hip flail joint, or malunion of the femur as contemplated by DCs 5250, 5254, and 5255. 38 C.F.R. § 4.71a. Accordingly, there is no basis for a higher rating. left knee The Veteran's left knee disability is rated 10 percent disabling under DC 5260 for limited leg flexion. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110; Kuzma, 341 F.3d 1327. If the revised version is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. Prior to the regulatory change, where flexion is limited to 45 degrees, a 10 percent rating is assigned under DC 5260. When flexion is limited to 30 degrees, a 20 percent rating is assigned; and when flexion is limited to 15 degrees, a 30 percent rating is assigned. 38 C.F.R. § 4.71a. Under DC 5261, where extension is limited to 10 degrees, a 10 percent rating is assigned. When extension is limited to 15 degrees, a 20 percent rating is assigned; when limited to 20 degrees, a 30 percent disabling is assigned; when limited to 30 degrees, a 40 percent rating is assigned and when extension is limited to 45 degrees, a 50 percent rating is assigned. Id. Separate ratings may be assigned for disability of the same joint under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg). See VAOPGCPREC 9-04. Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Normal range of motion in the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. These diagnostic codes are unaffected by the February 7, 2021 regulatory changes. Relevant evidence includes an April 2017 VA examination report shows the Veteran reported constant pain worse with activity such as bending, climbing stairs, and standing and used a knee brace. On examination left knee flexion was to 115 degrees with full extension with no additional loss of motion after repetitive use testing or evidence of functional loss. There was no evidence of pain on weight bearing or on non-weight bearing, but there was moderate patella pain on palpation. As the Veteran was not examined with repeated use over time, the examiner stated he could not address whether pain, weakness, fatigability, or incoordination significantly limited functional ability without resorting to mere speculation. The Veteran did not report flare-ups. There were no additional factors contributing to disability. Muscle strength was normal at 5/5 for knee flexion and extension with no evidence of atrophy or ankylosis. Joint stability testing was negative with no evidence of recurrent subluxation, lateral instability, recurrent effusion, or meniscus (semilunar cartilage) conditions. Subsequently dated outpatient records are not materially different from those reported on the VA examination and show no indication of a worsening in range of motion or functional impairment to warrant a higher evaluation. When examined by VA in April 2019, the Veteran's reports of knee pain were unchanged. He reported flare-ups described as increased pain with prolonged standing, walking, running, and kneeling. Range of motion testing showed left knee flexion to 110 degrees with full extension with no additional loss of function or range of motion with repetitive-use testing. There was left knee pain with passive range of motion, weight bearing and non weight bearing. Pain further limited flexion to 105 degrees with repeated use over time and during flare-ups. There was tenderness in the anterior knee and the Veteran occasionally used a knee brace. Additional contributing factors of disability included disturbance of locomotion and interference with standing. Muscle strength was normal at 5/5 for knee flexion and extension with no evidence of atrophy or ankylosis. Joint stability testing was negative with no evidence of recurrent subluxation, lateral instability, or recurrent effusion. There was no evidence of recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, tibial and/or fibular impairment, or meniscus (semilunar cartilage) condition. Imaging studies showed moderate calcific tendinitis of the patella with no radiographic evidence of any bony pathology. The few treatment records associated with the claims file since the VA examination do not reflect a worsening in range of motion or functional impairment. Based on the preceding evidence, the criteria for a rating greater than 10 percent for the Veteran's left knee disability are not met under the old or revised rating criteria. The record largely reflects findings of flexion was limited to, at worst, 105 degrees and extension was consistently normal. 38 C.F.R. § 4.71a. If strictly rated under range-of-motion diagnostic codes, the Veteran's left knee range of motion would be rated as noncompensable. The current 10 percent rating assigned reflects painful motion without a compensable limitation of motion under any of the relevant diagnostic codes. See 38 C.F.R. § 4.59 (allowing for assignment of the minimum compensable rating for functional loss due to painful motion). Although the record shows the Veteran experiences chronic knee pain and limitation of motion, and used a brace for ambulation, the clinical findings do not suggest that range of motion would change to the degree required for even noncompensable evaluations (60 degrees of flexion or 5 degrees of extension) after repetitive use, due to pain, with weight bearing, or during flare-ups. Given that his complaints do not prevent him from achieving substantial measured range of left knee motion they do not support a finding of additional functional loss for a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, supra; Mitchell, supra; Correia, supra; and Sharp, supra. (Continued on the next page) The Board has also considered whether the Veteran would be entitled to higher or separate ratings under any other diagnostic code, but other analogous ratings are either not applicable or do not offer higher disability rating based on the symptomatology exhibited. In other words, there is no evidence of instability, ankylosis, meniscus impairment, nonunion of the tibia/fibula, or genu recurvatum. See 38 C.F.R. § 4.71a, 5256, 5257, 5258, 5259, 5262, 5263. Accordingly, there is no basis for a higher rating. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.