Citation Nr: 21068427 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 14-36 976 DATE: November 10, 2021 ORDER Entitlement to a 20 percent rating for degenerative arthritis of the right knee is granted from June 3, 2017 to December 15, 2018. Entitlement to a 20 percent rating for degenerative arthritis of the left knee is granted from June 3, 2017 to December 15, 2018. Entitlement to a 20 percent rating for right ankle tendonitis is granted from June 3, 2017 to December 15, 2018. FINDINGS OF FACT 1. For the period from June 3, 2017 to December 15, 2018, the Veteran's degenerative arthritis of the right knee is manifested by a limitation of flexion to 30 degrees or less in consideration of flare ups. 2. For the period from June 3, 2017 to December 15, 2018, the Veteran's degenerative arthritis of the left knee is manifested by a limitation of flexion to 30 degrees or less in consideration of flare ups. 3. For the period from June 3, 2017 to December 15, 2018, the Veteran's right ankle tendonitis is manifested by a marked limitation of motion in consideration of flare ups. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating from June 3, 2017 to December 15, 2018 for degenerative arthritis of the right knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260 (2020). 2. The criteria for a 20 percent rating from June 3, 2017 to December 15, 2018 for degenerative arthritis of the left knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260 (2020). 3. The criteria for a 20 percent rating from June 3, 2017 to December 15, 2018 for right ankle tendonitis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5271 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from February 1982 to September 1985. The Veteran applied for increased ratings of the bilateral knees and right ankle in June 2017. In April 2019, November 2019, April 2020, August 2020, and April 2021 the Board remanded the Veteran's claims for increased ratings for examinations to consider the Veteran's reports of flare ups per Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board finds that there continues to not be substantial compliance with the directives of the prior remand orders. However, in light of the numerous remands in regard to these claims, the Board finds that it would be futile to continue to try to obtain the information requested regarding the period from June 3, 2017 (the date the Veteran applied for increased ratings) to December 15, 2018 (one date prior to the date the Board previously determined an increased rating was warranted). The Board also notes that the VA adjudication system is not adversarial but rather, is "paternalistic," Collaro v. West, 136 F.3d 1304, 1309-10 (Fed. Cir. 1998), "uniquely pro-claimant," Hodge v. West, 155 F.3d 1356, 1362-64 (Fed. Cir. 1998), and governed by principles of fairness and notice. See Marsh v. West, 11 Vet. App. 468, 471 (1998). Thus, for the reasons discussed herein, the Board finds another remand is not warranted in light of the favorable decisions granted herein. Increased Rating 1. & 2. Entitlement to 20 percent ratings for degenerative arthritis of the right and left knees is granted from June 3, 2017 to December 15, 2018 Due to the similar nature of the claims, the Veteran's entitlement for increased ratings for the bilateral knees will be discussed together herein. As noted above, the Veteran applied for increased ratings for the knees on June 3, 3017. In August 2020, the Board granted increased ratings for the bilateral knees and remanded the period prior to December 16, 2018. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant Diagnostic Codes (DCs) for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. As an initial matter, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the Veteran's knee disabilities are rated as DC 5003-5260. This reflects that he has arthritis in the joint. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (outlined above for the knee). 38 C.F.R. § 4.71a, DC 5003. Limitation of motion for the knee means limitation of flexion and limitation of extension. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), the law does not allow for a separate rating under DCs 5259 and 5260 and/or 5261, because that would be compensating the same limitation of motion more than once. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055. 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 select 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 to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation 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. 38 U.S.C. § 5110. Accordingly, the Board will consider the Veteran's claim under the old criteria as the period at issue is entirely before the regulation change. Turning to the evidence, prior to December 2018, the Veteran was afforded a VA examination of the knees in August 2017. The Veteran reported flare ups of the knees resulting in swelling after intense activity. The examiner declined to provide an opinion regarding flare ups. Range of motion testing of the right knee showed flexion to 90 degrees and normal extension. Range of motion testing of the left knee showed flexion to 95 degrees and normal extension. There was no evidence of additional conditions of the knee to include joint instability or limitations to muscle strength. In November 2020, an independent medical examiner (IME) reviewed the Veteran's claims file. The examiner opined the severity of the Veteran's bilateral knee impairments had increased since the August 2017 VA examination. The examiner stated the Veteran's current severity and limitations as related to flare ups but failed to provide the requested retrospective opinion regarding the Veteran's limitations considering flare ups for the period from June 3, 2016 and prior to December 16, 2018. In July 2021, a VA examiner reviewed the Veteran's file and provided a full history of the Veteran's previous VA examinations. However, the examiner did not provide a retrospective opinion regarding the Veteran's limitations during flare ups for the period at issue. Rather, the examiner stated that the established diagnosis was degenerative arthritis of the bilateral knees and that there was a worsening of symptoms, but no change to the diagnoses. Affording the Veteran the benefit of the doubt and in light of the Veteran's reports of flare ups of the bilateral knees for the period from June 3, 2017 to December 15, 2018, the Board finds that an increased 20 percent rating is warranted for the bilateral knee impairments. While the evidence of record does not show that the Veteran's flexion was limited to 30 degrees during periods of flare ups, the Veteran's consistent and credible reports of swelling after intense activity warrant an additional disability compensation. As noted above, the Board has failed to obtain a VA examination considering the impact of flare ups for the period on appeal. However, the Board finds that the increased 20 percent ratings for the bilateral knees adequately compensates the additional limitations of the Veteran during periods of flare ups. Further, there is no evidence that the Veteran was further limited in range of motion for this period. The Board has granted the claim as of the application date for an increased rating. While the Board considered the one-year period prior to the application date, there has been no evidence demonstrating that the Veteran experienced flare ups during this period. The Board may only grant an effective date prior to the application for an increased rating if there is actual evidence of increase during that period. As the record does not show an increase prior to the effective date, the Board finds that granting the increased rating to the date of application for increase is proper. In conclusion, increased 20 percent ratings for the Veteran's degenerative arthritis of the bilateral knees is granted for the period from June 3, 2017 to December 15, 2018. 3. Entitlement to a 20 percent rating for right ankle tendonitis is granted from June 3, 2017 to December 15, 2018 As noted above, the Board has granted a 20 percent disability evaluation for the Veteran's right ankle tendonitis effective December 16, 2018. For the reasons discussed herein, the Board finds that a uniform 20 percent rating is warranted effective June 3, 2017. The Veteran's right ankle tendonitis has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Ratings under this code are available at 10 percent for moderate limited motion and 20 percent for marked limited motion. The terms "moderate" and "marked" are not defined under VA regulations. Those terms also do not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Alternative and additional Diagnostic Codes for the ankle are available under 38 C.F.R. § 4.71a, as follows: Under Diagnostic Code 5270, ankylosis of the ankle in plantar flexion less than 30 degrees is rated at 20 percent; ankylosis in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees is rated at 30 percent; and ankylosis in plantar flexion at more than 40 degrees, in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity is rated at 40 percent. Under Diagnostic Code 5272, ankylosis of the subastragalar or tarsal joint is rated at 10 percent for ankylosis in good weight-bearing position and at 20 percent for ankylosis in poor weight-bearing position. Under Diagnostic Code 5273, malunion of the os calcis or astragalus is rated at 10 percent for moderate deformity and 20 percent for marked deformity. Under Diagnostic Code 5274, astragalectomy is rated at 20 percent. Turning to the evidence prior to December 2018, the Veteran was afforded a VA examination of the ankles in August 2017. The Veteran reported flare ups of the ankle resulting in weakness and swelling. The examiner declined to provide an opinion regarding flare ups. In November 2020, an IME reviewed the Veteran's claims file. The examiner opined the severity of the Veteran's right ankle impairments had increased since the August 2017 VA examination. The examiner stated the Veteran's current severity and limitations as related to flare ups but failed to provide the requested retrospective opinion regarding the Veteran's limitations considering flare ups for the period from June 3, 2016 and prior to December 16, 2018. In July 2021, a VA examiner reviewed the Veteran's file and provided a full history of the Veteran's previous VA examinations. However, the examiner did not provide a retrospective opinion regarding the Veteran's limitations during flare ups for the period at issue. Rather, the examiner stated that the established diagnosis was right ankle tendonitis and that there was a worsening of symptoms, but no change to the diagnosis. Affording the Veteran the benefit of the doubt and in light of the Veteran's reports of flare ups of the right ankle for the period from June 3, 2017 to December 15, 2018, the Board finds that an increased 20 percent rating is warranted for the right ankle impairment. The evidence of record establishes that the Veteran has additional impairments of the right ankle during periods of flare ups. As noted above, the Board has failed to obtain a VA examination considering the impact of flare ups for the period on appeal. However, the Board finds that the increased 20 percent rating for the right ankle adequately compensates the additional limitations of the Veteran during periods of flare ups. Further, the Board notes that this is the maximum schedular rating for limitations of motion in the right ankle. Notwithstanding the above, the Board has also considered other potentially applicable Diagnostic Codes that may provide a basis for higher evaluations for the right ankle. The range of motion findings exhibited by the Veteran are inconsistent with a finding of ankylosis, or "immobility and consolidation" of the left ankle joint. Moreover, the VA examiners throughout the period on appeal have observed no joint ankylosis of the Veteran's ankles. Accordingly, the Board finds that the provisions of Diagnostic Code 5270 pertaining to ankylosis are not for application. Since ankylosis has not been shown, the provisions of Diagnostic 5272, which govern ankylosis of the subastragalar or tarsal joint, are likewise not applicable to the current claim. Additionally, with regard to Diagnostic Code 5273, malunion of the os calcis or astragalus has not been demonstrated. Finally, with regard to Diagnostic Code 5274, the medical evidence is without complaints of or treatment for an astragalectomy of the ankle, which involves removal of the ankle bone. As such, a rating under this provision is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5274. The Board has granted the claim as of the application date for an increased rating. While the Board considered the one-year period prior to the application date, there has been no evidence demonstrating that the Veteran experienced flare ups during this period. The Board may only grant an effective date prior to the application for an increased rating if there is actual evidence of increase during that period. As the record does not show an increase prior to the effective date, the Board finds that granting the increased rating to the date of application for increase is proper. In conclusion, an increased 20 percent rating for the Veteran's right ankle tendonitis is granted for the period from June 3, 2017 to December 15, 2018. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura C. Owens 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.