Citation Nr: 21076491 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 15-29 558 DATE: December 23, 2021 ORDER Entitlement to an initial compensable rating for left shoulder strain prior to November 15, 2019 and in excess of 20 percent thereafter is denied. Entitlement to an initial compensable rating for right knee sprain prior to November 15, 2019 and in excess of 10 percent thereafter is denied. Entitlement to an initial compensable rating for left ankle sprain prior to November 15, 2019 and in excess of 10 percent thereafter is denied. FINDINGS OF FACT 1. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's left shoulder disability did not result in limitation of motion to midway between side and shoulder level or at shoulder level or at least recurrent dislocation or malunion of the scapulohumeral joint prior to November 15, 2019. From November 15, 2019, the left shoulder disability has not resulted in limitation of motion to 25 degrees from side or at least fibrous union of the humerus. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's right knee disability did not manifest flexion to 45 degrees or extension to 10 degrees prior to November 15, 2019. From November 15, 2019, the right knee disability has not manifested flexion to 30 degrees or extension to 15 degrees. The Veteran has not had dislocated or removed semi-lunar cartilage or recurrent subluxation or instability at any time during the appeal. 3. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's left ankle disability did not result in at least slight limited motion prior to November 15, 2019. From November 15, 2019, the left ankle disability has not resulted in at least marked limited motion; and, during the appeal period, the preponderance of the medical and lay evidence fails to demonstrate left ankle instability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for left shoulder strain prior to November 15, 2019 and in excess of 20 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5202. 2. The criteria for an initial compensable rating for right knee sprain prior to November 15, 2019 and in excess of 10 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5257-5261. 3. The criteria for an initial compensable rating for left ankle sprain prior to November 15, 2019 and in excess of 10 percent thereafter are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from August 2006 to February 2014. The appeal originates from a December 2014 decision of a Department of Veterans Affairs (VA) Regional Office. The matter was remanded in August 2018, October 2020, and October 2021 for VA examinations and issuance of a supplemental statement of the case (SSOC). The record reflects that examinations were obtained (as recently as March 2021) and an SSOC was issued in October 2021. There has been substantial compliance with the Remand directives. 1. Entitlement to an initial compensable rating for left shoulder strain prior to November 15, 2019 and in excess of 20 percent thereafter. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the 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 to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec. of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the claims. The Veteran's left shoulder disability is rated under Diagnostic Code 5201 for limitation of motion of the arm. Prior to February 7, 2021, for the minor arm, a 30 percent rating required limitation of motion to 25 degrees from side. A 20 percent rating required limitation of motion to midway between side and shoulder level or at shoulder level. From February 7, 2021, for the minor arm, a 30 percent rating requires flexion and/or abduction limited to 25 degrees from side. A 20 percent rating requires limitation of motion to midway between side and shoulder level (flexion and/or abduction limited to 45°) or at shoulder level. Diagnostic Code 5202 addresses other impairment of the humerus. Prior to February 7, 2021, for the minor arm, a 70 percent rating required loss of head of (flail shoulder). A 50 percent rating required nonunion of (false flail joint). A 40 percent rating required fibrous union of the humerus. A 20 percent rating required recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements or with infrequent episodes, and guarding of movement only at shoulder level or malunion with marked or moderate deformity. From February 7, 2021, for the minor arm, a 70 percent rating requires loss of head of (flail shoulder). A 50 percent rating requires nonunion of (false flail joint). A 40 percent rating requires fibrous union of the humerus. A 20 percent rating requires recurrent dislocation of at scapulohumeral joint with frequent episodes and guarding of all arm movements or with infrequent episodes, and guarding of movement only at shoulder level (flexion and/or abduction at 90°) or malunion with marked or moderate deformity. Based on the evidence, including the October 2014, November 2019, and March 2021 examinations, the Veteran is not entitled to an increased rating at any time during the appeal. He has had, at worst, flexion, abduction, external rotation, and internal rotation limited to, 105, 105, 70, and 70 degrees respectively with repeated use over time and flareups, including consideration of passive use. Such does not constitute limitation of motion to even midway between side and shoulder level or at shoulder level to warrant an increased rating. He neither contends, nor does the medical evidence show, that he has had humeral impairment (including recurrent dislocation or fibrous union) at any time during the appeal. To the contrary, the examiners repeatedly made findings that he did not have such impairment. The Court of Appeals for Veterans Claims has established that reports of flare-ups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flareups must be quantifiable and result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flareup must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's reports of experiencing flareups of the left shoulder. The contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding his functional ability during a flareup or after repeated use over time. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the examiners when determining his ranges of motion (including during flareups). As to his reports of pain, weakness, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Therefore, the Board finds that the currently assigned ratings for the left shoulder adequately contemplate the documented and reported functional limitations. Mitchell, supra. Accordingly, an initial compensable rating for left shoulder strain prior to November 15, 2019 and in excess of 20 percent thereafter is not warranted. 2. Entitlement to an initial compensable rating for right knee sprain prior to November 15, 2019, and in excess of 10 percent thereafter. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5258, 5259, 5260, and 5261 were not substantively changed. Diagnostic Code 5257 was substantively changed and is discussed in further detail below. The Veteran's right knee disability is rated under Diagnostic Code 5260 for limitation of flexion of the leg. A 20 percent rating requires flexion limited to 30 degrees. A 10 percent rating requires flexion limited to 45 degrees. A noncompensable rating is assigned when flexion is limited to 60 degrees. Diagnostic Code 5257 addresses other impairment of the knee. Prior to February 7, 2021, a 10 percent rating required slight recurrent subluxation or lateral instability. From February 7, 2021, for recurrent subluxation or instability under Diagnostic Code 5257, a 10 percent rating requires sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. From February 7, 2021, for patellar instability under Diagnostic Code 5257, a 10 percent rating requires a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Diagnostic Code 5258 assigns a 20 percent rating for dislocated semilunar cartilage with episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 assigns a 10 percent rating for removal of symptomatic semilunar cartilage. Diagnostic Code 5261 addresses limitation of extension of the leg. A 20 percent rating requires extension limited to 15 degrees. A 10 percent rating requires extension limited to 10 degrees. A noncompensable rating is assigned when extension is limited to 5 degrees. Based on the evidence, including the October 2014, November 2019, and March 2021 examinations, the Veteran is not entitled to an increased rating for his right knee disability. He has not had flexion to 45 degrees or extension to 10 degrees. At worst, flexion has been limited to 105 degrees during flareups and with repeated use over time with 0 degrees of extension (normal), including consideration of repetitive and passive use. Such does not approximate limitation of motion required for even a noncompensable rating based on flexion or extension. With respect to a meniscal condition, the Veteran neither contends nor has he been found to have dislocated or removed semilunar cartilage. As to subluxation or instability, he reported instability at the November 2019 examination, specifically that his knee gave out six times a year. However, he denied a history of instability at the March 2021 examination and did not appear to specify any actual symptoms of instability, with joint stability testing being normal. Given this inconsistent reporting, it would be speculative to assign a separate rating for instability under Diagnostic Code 5257 per the old or new rating criteria. Consideration has been given to the Veteran's reports of experiencing flareups of the right knee. The contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding his functional ability during a flareup or after repeated use over time. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the examiners when determining his ranges of motion (including during flareups). As to his reports of pain, discomfort, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Therefore, the Board finds that the currently assigned ratings for the right knee adequately contemplate the documented and reported functional limitations. Mitchell, supra. Accordingly, an initial compensable rating for right knee sprain prior to November 15, 2019, and in excess of 10 percent thereafter is not warranted. 3. Entitlement to an initial compensable rating for left ankle sprain prior to November 15, 2019 and in excess of 10 percent thereafter. Diagnostic Code 5262 addresses impairment of the fibula and tibula. Prior to February 7, 2021, a 10 percent rating required malunion with slight knee or ankle disability. The terms "marked," "moderate," and "slight" are not defined, and the question of whether a particular degree of disability is slight, moderate, or marked is ultimately a legal rather than a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary's authority "to make findings and decisions . . . as to the entitlement of claimants to benefits" to, inter alia, VA "adjudicative personnel"); 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination . . . so that the current rating may accurately reflect the elements of disability present.") From February 7, 2021, Diagnostic Code 5262 no longer provides ratings for malunion of the tibia and fibula but rather indicates that it be rated under Diagnostic Code 5270 for ankylosis (which is not applicable in this case) or limited motion of the ankle under Diagnostic Code 5271. The Veteran's left ankle disability is rated under Diagnostic Code 5271, which was substantively changed under the revised regulations. Prior to February 7, 2021, a 20 percent rating required marked limited motion. A 10 percent rating required moderate limited motion. However, from February 7, 2021, a 20 percent rating requires marked limited motion, which is now defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. Based on the evidence, including the October 2014, November 2019, and March 2021 examinations, the Veteran is not entitled to an increased rating at any time during the appeal. He has reported pain with activities such as walking and running on uneven surfaces and climbing stairs. However, prior to November 15, 2019, range of motion testing did not reflect at least moderate limitation of motion. Rather, the Veteran had, at worst, plantar flexion to 15 degrees and dorsiflexion to 15 degrees in November 2019. The November 2019 examiner determined that functional ability was not significantly limited with repeated use over time and flareups. Significantly, despite reporting pain, the Veteran's left ankle did not require care and he was noted to perform physically demanding work in carpentry and HVAC. Neither is the Veteran entitled to an increased rating from November 15, 2019. In March 2021, he continued to report pain, but range of motion testing reflected, at worst, plantar flexion to 25 degrees and dorsiflexion to 5 degrees with flareups, with consideration of repetitive use, repeated use over time, and passive use. The Veteran was noted to be able to perform activities of daily living and physical activities such as standing, walking, and climbing ladders. Such cannot be reasonably construed as marked limited motion under the former rating criteria and does not satisfy the measurements for an increased rating under the new criteria. The Board has considered whether a separate rating for left ankle instability is warranted under Diagnostic Code 5262. At the March 2021 examination, the Veteran reported instability and there was evidence of asymmetric or excessive motion. When asked about instability, he stated that he sprained his ankle at least once monthly walking on uneven terrain, resulting in two to seven days of pain and swelling requiring use of a non-prescribed brace, medication, and rest. Yet he reported working in physically demanding employment and missing no more than one week of employment in the prior year. Moreover, his most recent episode of instability described a workplace injury due to stepping in a hole in the ground, leaving it unclear whether his reported instability actually describes manifestations of his disability. The preceding tends to weigh against assignment of a separate compensable rating based on instability. Consideration has been given to the Veteran's reports of experiencing flareups of the left ankle. The contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding his functional ability during a flareup or after repeated use over time. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the examiners when determining his ranges of motion (including during flareups). As to his reports of pain, swelling, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Therefore, the Board finds that the currently assigned ratings for the left ankle adequately contemplate the documented and reported functional limitations. Mitchell, supra. Accordingly, an initial compensable rating for left ankle sprain prior to November 15, 2019 and in excess of 10 percent thereafter is not warranted. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.