Citation Nr: 21071330 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-09 142A DATE: November 30, 2021 ORDER Entitlement to a higher rating in excess of 20 percent for post-operative right anterior ankle tendonitis is denied. Entitlement to service connection for a lumbar spine condition is denied. Entitlement to service connection for a right hip condition is denied. Entitlement to service connection for a left hip condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a left ankle condition is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's post-operative right anterior ankle tendonitis manifested by no worse than marked limitation of motion of the ankle without ankylosis or malunion of the tibia and fibula. 2. The Veteran's lumbar spine condition is a congenital defect, and was not aggravated beyond its natural progression by his time in-service as there is no evidence of a superimposed pathology. 3. The Veteran's right hip condition is a congenital defect, and was not aggravated beyond its natural progression by his time in-service as there is no evidence of a superimposed pathology. 4. The Veteran's left hip condition is a congenital defect, and was not aggravated beyond its natural progression by his time in-service as there is no evidence of a superimposed pathology. 5. The Veteran's right knee condition is a congenital defect, and was not aggravated beyond its natural progression by his time in-service as there is no evidence of a superimposed pathology. 6. The Veteran's left knee condition is a congenital defect, and was not aggravated beyond its natural progression by his time in-service as there is no evidence of a superimposed pathology. 7. The Veteran's left ankle condition is a congenital defect, and was not aggravated beyond its natural progression by his time in-service as there is no evidence of a superimposed pathology. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 20 percent for post-operative right anterior ankle tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59; 38 C.F.R. § 4.71a, Diagnostic Codes 5024-5271 (prior to February 7, 2021); 38 C.F.R. § 4.71a, Diagnostic Codes 5024-5271 (since February 7, 2021). 2. The criteria for entitlement to service connection for a lumbar spine condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right hip condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a left hip condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for a right knee condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for a left knee condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for a left ankle condition are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1998 to February 1999. The Board remanded the case to the Regional Office (RO) for additional development in January 2018, August 2019, and in April 2021. As the requested development has been completed for the issues adjudicated in this decision, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran contends that he is entitled to an increased rating for his service-connected right ankle disability. The Veteran's right ankle disability has been evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5024-5271. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, DC 5024-5271 shows that tendonitis (DC 5024) is rated based on limitation of ankle motion (DC 5271). 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. Id. As previously noted, the Veteran's service-connected right ankle disability is currently rated under Diagnostic Codes 5024-5271. See 38 C.F.R. § 4.71a. Review of the portion of the rating schedule that addresses the musculoskeletal system revised effective February 7, 2021, shows that Diagnostic Codes 5024 and 5271 were changed. As a result, the Board will consider the Veteran's claim under Diagnostic Codes 5024 and 5271 pursuant to the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Again, the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory changes, under DC 5271, a 10 percent rating is assigned for limited motion of the ankle that is moderate, and a 20 percent rating is assigned for limited motion of the ankle that is marked. 38 C.F.R. § 4.71a, DC 5271 (2020). Normal dorsiflexion of the ankle is to 20 degrees and normal plantar flexion of the ankle is to 45 degrees. See 38 C.F.R. § 4.71, Plate II. As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted for marked limitation of motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). The Board finds that the preponderance of the evidence is against finding entitlement to a rating in excess of 20 percent for the right ankle disability for the period. A 20 percent rating is the maximum rating provided under Diagnostic Code 5271. To receive a higher rating, the evidence must show ankylosis of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (providing for 30 and 40 percent ratings for ankylosis in plantar flexion of at 30 degrees or greater, or in dorsiflexion at 0 degrees or greater). The evidence does not show ankylosis at any time in the right ankle. In addition, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of her pain, weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the Veteran has been assigned the maximum rating available on the basis of limitation of range of motion under Diagnostic Code 5721. Ankylosis of the right ankle has not been demonstrated even with consideration of these factors. The Board has considered whether the revised rating criteria provide a basis for higher ratings; however, the revised regulation also does not provide a basis for rating in excess of 20 percent under Diagnostic Code 5271, and therefore these criteria are not more favorable. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's right ankle disability is not shown to involve any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule, to specifically include ankylosis of the subastragalar or talar joint, or malunion of the os calcis or astragalus, or astragalectomy. As such, a rating under Diagnostic Codes 5272, 5273, or 5274 is not appropriate. The Board has also considered the Veteran's various statements regarding the severity of his ankle symptoms. Certainly, as a lay person, he is competent to attest to physical symptoms that he experiences, such as pain, stiffness, impaired mobility, difficulties with standing, and his treatment including use of braces and medication. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, these statements are credible, however, neither the lay nor medical evidence establishes ankylosis of the right ankle. Accordingly, the Board finds that a disability rating in excess of 20 percent is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Service Connection The Veteran contends that he bilateral hip disabilities, bilateral knee disabilities, a left ankle disability, and low back disability was related to his service-connected right ankle disability. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable VA statutes and regulations. 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted for diseases (though not defects) of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303 (c), 3.306. While service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury. If the superimposed disease or injury occurred during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). A congenital abnormality that is subject to improvement or deterioration is considered a "disease," while a congenital abnormality that is more or less stationary in nature and not considered capable of improving or deteriorating is considered a "defect." Id. Service connection may be granted for congenital (developmental or familial) diseases, but not defects, when the evidence as a whole establishes that the disease in question was incurred in or aggravated by active service within the meaning of VA law and regulations. VAOPGCPREC 82-90 (July 18, 1990); see Winn v. Brown, 8 Vet. App. 510, 516 (1996); Quirine v. Shinseki, 22 Vet. App. 390, 394 (2009). The presumption of soundness applies to a congenital disease but not to a congenital defect. Quirin, 22 Vet. App. at 397 (2009) In this case, the Board notes that an April 2018 VA examiner determined that the Veteran's left ankle, back, bilateral knee, and bilateral hip pain were a result of congenital hypermobility syndrome. The January 2020 VA opinion clarified that the benign joint hypermobility syndrome was a "congenital defect which a person is born with... This condition is a congenital condition thus would have predated military service." The Board finds the preponderance of the evidence establishes the Veteran's lumbar spine condition, bilateral hip conditions, bilateral knee conditions, and left ankle condition is more properly considered a congenital defect rather than a disease. Therefore, the question for the Board is whether any congenital defect was aggravated by a superimposed disease or injury during service which resulted in an additional disability. The Board further finds, as discuss below, that the evidence does not support the finding of a superimposed injury. A review of the service treatment records reveal report of left posterior lower extremity cramping in December 1998 and treatment for right heel pain in January 1999. According to the April 2018 VA opinion, upon review of the evidence of record, a physical examination, and consideration of the Veteran's lay statements, the VA examiner noted that the Veteran's back, bilateral hip, bilateral knee, and left ankle conditions were related to the benign hypermobility syndrome which was a "congenital condition which by definition would not be caused nor aggravated by the [service-connected] [right] ankle condition." The VA examiner determined that the back condition, bilateral hip conditions, bilateral knee condition, left ankle condition clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service injury, event, or illness. The service treatment records did not support "any significant injuring event to the right [lower extremity] that would adversely affect the ankle joint." The April 2018 VA examiner determined that although the Veteran alleged that his right ankle injury in service caused an alteration in gait and posture leading to his back, bilateral hips, and bilateral knee conditions, this was not plausible. The VA examiner explained that the Veteran's right ankle condition in service had resolved and the ankle laxity he reported was solely due to the hypermobility syndrome. The April 2018 VA examiner stated, "ankle laxity should not alter his posture and his gait had been repeatedly noted to be normal in the vast majority of times it was noted in the medical record... occasionally limping should not adversely affect other joint and structures nor will ot cause laxity of joints and spine support structures from a biomechanical reason." Chronic and widespread pain was a common symptom in hypermobility syndrome and his back, bilateral hips, and bilateral knees were included in the location of pain he had from this condition. Specifically pertaining to his back condition, there was "no indication he had any issues with his back while on [active duty] and onset of back pain complaints is quite remote from his time in service..." There was simply no evidence to support that there was any aggravation of the hypermobility syndrome while on active duty. In addition to determining that the Veteran's hypermobility syndrome was congenital defect, upon review of the evidence of record, a physical examination, and considering the Veteran's lay statements, the January 2020 VA examiner addressed each of the diagnosed conditions as identified by the October 2011 and April 2012 VA examination reports. The October 2011 VA medical opinion noted a diagnosis of bilateral equinus and the April 2012 VA examination report that noted diagnoses of a lumbar strain, lumbar spine degenerative joint disease (DJD), bilateral iliotibial band syndrome, bilateral patellar tendinitis, and bilateral hip flexor strains. The January 2020 VA examiner stated that the current physical examination did not demonstrate significant equinus. The 2012 and 2018 VA examinations did not diagnose this condition with the April 2012 VA examination noting that left ankle demonstrated normal range of motion and "more movement than normal" for the left ankle which contradicted this diagnosis. Regarding the lumbar strain, the January 2020 VA examiner noted that this was diagnosed in 2012 but no recent medical records were found indicating a current diagnosis. This condition was a separate condition with separate underlying pathophysiology and etiology from the ankle condition. Strains typically resolved with rest and conservative therapy. Additionally, the lumbar spine DJD was not supported by current imaging. While this condition was noted in 2012, the January 2020 VA examiner stated she was unable to find primary imaging demonstrating this diagnosis. Current imaging noted early hypertrophy and sclerosis at the sacroiliac joint but that this condition was a common finding in the Veteran's age population and a separate unrelated condition from the right ankle condition. Regarding the bilateral iliotibial band syndrome, the January 2020 VA examiner found that the current records and examination did not support this as an ongoing diagnosis. This condition was a separate condition with separate underlying pathophysiology and etiology from an ankle condition. Current hip imaging noted midfoot joint spaces appeared maintained without significant degenerative changes. The January 2020 VA examiner stated that the Veteran's bilateral patellar tendinitis was a transient condition expected to resolve with rest and conservative therapy. It was noted in 2012 and a separate condition with separate underlying pathophysiology and etiology from an ankle condition. Finally, the January 2020 VA examiner determined that the bilateral hip flexor strains was typically a self-limited condition and that current record did not indicate recent treatment for an ongoing hip flexor strain. This condition was noted in 2012 and a separate condition with separate underlying pathophysiology and etiology from an ankle condition. Based on the findings from the April 2018 and January 2020 VA examiners, the Board concludes that the Veteran's back condition, bilateral hip conditions, bilateral knee conditions, and a left ankle condition are congenital defects and they were not aggravated or subject to superimposed disease or injury during the Veteran's active service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. In reaching this conclusion, the most probative evidence of record indicates the nature, physiology, and progression of the Veteran's hypermobility syndrome defect was functionally indistinguishable from the expected progression of the defect in general. These findings are supported by the April 2018 and January 2020 VA medical opinions. To the extent that the Veteran may have separate disabilities of each joint distinct from the preexisting benign joint hypermobility syndrome, there is either no probative evidence of a current disability and/or evidence that it is related to service or service-connected right ankle disability as demonstrated by the medical evidence cited above. The Board finds the VA opinions to be competent and highly probative. The opinions are supported by adequate rationale based on a review of the claims file and examination of the Veteran; they are factually accurate and contain sound reasoning. Notably, no medical professional has related the Veteran's disabilities to service or found the preexisting defects were aggravated or subject to superimposed disease or injury during the Veteran's active service. In reaching these findings, the Board has considered the Veteran's lay contentions. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that they observed and that are within the realm of their personal knowledge. However, a lay person is not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Though the Veteran is competent to describe his history of symptoms, a determination as to the diagnosis and etiology of these conditions involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and effect relationship, and therefore, he is not competent to render such a complex medical opinion. As such, the question of the Veteran's conditions and symptoms may not be competently addressed by lay evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examining VA examiners possesses the necessary education, training, and expertise to provide a competent medical opinion. 38 C.F.R. § 3.159 (a)(1); Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). Considering all this, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a back condition, bilateral hip conditions, bilateral knee conditions, and a left ankle condition. 38 C.F.R. §§ 3.303, 3.310. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 C.F.R. § 3.102. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.