Citation Nr: 21077309 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-14 002A DATE: December 29, 2021 ORDER Entitlement to an initial rating greater than 10 percent for right knee degenerative arthritis prior to May 21, 2021, and greater than 20 percent thereafter, is denied. Entitlement to an initial rating greater than 10 percent for left knee degenerative arthritis prior to May 21, 2021, and greater than 20 percent thereafter, is denied. Entitlement to a disability rating greater than 10 percent for surgical scar of the left ankle is denied. Entitlement to a disability rating greater than 10 percent prior to May 7, 2021, and greater than 20 percent thereafter, for left foot hammertoes 2-4, left calcaneal spur, left foot arch collapse and talonavicular joint exostosis, is denied. Entitlement to a disability rating greater than 20 percent prior to May 7, 2021, and greater than 30 percent thereafter, for post-operative residuals of left ankle injury with pain and limitation of motion is denied. Entitlement to a disability rating greater than 20 percent prior to May 7, 2021, and greater than 30 percent thereafter, for residuals of right ankle injury is denied. Entitlement to service connection for a right hip disability, to include as due to service-connected bilateral ankle disabilities, is granted. FINDINGS OF FACT 1. The record evidence does not show that, prior to May 21, 2021, the Veteran's flexion is limited to 30 degrees in either knee. 2. The record evidence does not show that, from May 21, 2021 the Veteran's flexion is limited to 15 degrees in either knee. 3. The record evidence shows that the Veteran has one left ankle scar with no skin breakdown, underlying tissue damage, inflammation, edema, functional limitation, or keloid formation. 4. The record evidence shows that the Veteran's left foot hammertoes 2-4, left calcaneal spur, left foot arch collapse and talonavicular joint exostosis are manifested primarily by pain accentuated on use, pain on manipulation, with symptoms not relieved by orthotics. 5. The record evidence shows that the Veteran's ankles, at worst, result in dorsiflexion between 0 and 10 degrees and plantar flexion less than 30 degrees in a poor weight-bearing position. 6. The record evidence is in relative equipoise as to whether the Veteran's service-connected bilateral ankle disabilities caused or aggravated his right hip disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for right knee degenerative arthritis prior to May 21, 2021, and greater than 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating greater than 10 percent for left knee degenerative arthritis prior to May 21, 2021, and greater than 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DC 5260. 3. The criteria for a disability rating greater than 10 percent for a surgical scar of the left ankle have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, DC 7804. 4. The criteria for a disability rating greater than 20 percent for left foot hammertoes 2-4, left calcaneal spur, left foot arch collapse and talonavicular joint exostosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.27, 4.40, 4.45, 4.70, 4.71a, DC 5276. 5. The criteria for a disability rating greater than 30 percent for residuals of a right ankle injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5270. 6. The criteria for a disability rating greater than 30 percent for post-operative residuals of left ankle injury with pain and limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5270. 7. The criteria for service connection for a right hip disability as secondary to service-connected bilateral ankle disabilities have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from September 1971 to January 1972. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) from May 2013 and April 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These two appeals were merged for the purposes of judicial economy and efficiency. A Travel Board hearing was held in October 2019 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. After the Veterans Law Judge who held this hearing subsequently left the Board, the Veteran was given the opportunity to have another hearing before a different Veterans Law Judge in July 2021 correspondence. He did not respond. Thus, his hearing request is deemed satisfied. See 38 C.F.R. § 20.704. The Board denied the Veteran's claims for initial ratings greater than 10 percent for bilateral knee disabilities and remanded the other claims to the RO in February 2020. The Veteran, through an attorney, and VA's Office of General Counsel appealed the Board's February 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand (JMR) which vacated the February 2020 decision to the extent that it denied higher initial ratings for bilateral knee disabilities and remanded these matters back to the Board. Increased Rating 1. Bilateral knee degenerative arthritis The Veteran's right and left knee disabilities are assigned an initial 10 percent disability rating under DC 5260 for limitation of flexion prior to May 21, 2021, and a rating of 20 percent thereafter. In a May 2021 rating decision, the RO increased the Veteran's disability rating for each knee disability to 20 percent and granted service connection for bilateral knee instability. The Veteran was given a VA examination in February 2018. The examiner found a limited range of motion (ROM) of both knees measured as flexion from 0 to 115 degrees and extension from 115 to 0 degrees. Pain was noted on examination, but it was not noted as resulting in functional loss. At the examination, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. While the Veteran reported bilateral knee pain and swelling, he denied flare-ups of his knee disabilities as well as functional loss or impairment. Despite these findings, the examiner indicated that he was unable to describe the Veteran's functional loss in terms of range of motion for either knee without resorting to mere speculation "because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The Veteran was given another VA examination in May 2021. The examiner found limited ROM of both knees. The ROM of the Veteran's right knee measured as flexion to 25 degrees, and extension to 0 degrees. The ROM of the Veteran's left knee measured as flexion to 35 degrees, and extension to 0 degrees. Passive ROM was measured to be the same as active ROM. Pain was noted on examination, but it was not noted as resulting in functional loss. The ROM after repetitive use of the Veteran's right knee measured as flexion to 20 degrees, and extension to 0 degrees. The ROM after repetitive use of the Veteran's left knee measured as flexion to 30 degrees, and extension to 0 degrees. The examiner found no evidence that flare ups resulted in additional ROM loss. There was no evidence of muscle atrophy, ankylosis, ligament tear, tibial or fibular impairment but there was evidence of anterior and posterior instability and meniscus tears. The Board finds that an initial rating greater than 10 percent prior to May 21, 2021, and greater than 20 percent thereafter for bilateral knee degenerative arthritis is not warranted. Prior to May 21, 2021 the evidence of record does not support finding that the Veteran's flexion is limited to 30 degrees for either knee. From May 21, 2021 the evidence of record does not support finding that the Veteran's flexion is limited to 15 degrees for either knee. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 10 percent prior to May 21, 2021, and greater than 20 percent thereafter, for his service-connected bilateral knee degenerative arthritis. In summary, the Board finds that the criteria for initial ratings greater than 10 percent prior to May 21, 2021, and greater than 20 percent thereafter, for right knee degenerative arthritis and for left knee degenerative arthritis have not been met. 2. Surgical scar of the left ankle The Veteran's surgical scar of the left ankle has been rated as 10 percent disabling under DC 7804. 38 C.F.R. § 4.118, DC 7804. The Veteran asserted in an October 2019 hearing that this disability had worsened. In February 2020, the Board remanded for a new VA examination. The Veteran was given a VA examination in May 2021. Here the examiner noted that the Veteran did not have any scars of the head, face or neck. There were no painful or unstable scars noted on examination. The left ankle scar was measured as 24.0 cm x 0.1 cm. The total area was approximated as 2.4 square centimeters. The examiner stated that for the VA established diagnosis of surgical scar of the left ankle there is no change in the diagnosis. There was no evidence of gross distortion or functional impairment. Here, the Veteran's disability is manifested by a single scar which is neither painful nor unstable. His scar has 1 characteristic of disfigurement because it is 24 cm long. This physical examination finding is compensated adequately by the 10 percent rating currently assigned for this disability under DC 7804. Id. There is no indication that this scar is manifested by more than 1 characteristic of disfigurement, however. Therefore, it is not entitled to an increased rating. The Board has considered the Veteran's assertions that his is entitled to a higher evaluation for the left ankle scar. His assertions lack specificity and outweighed by the findings of the VA examiners which show only 1 scar which is not painful or unstable. The VA examination reports were prepared after examinations, interviews with the Veteran, reviews of the record, and consideration of the Veteran's lay statements. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 10 percent for his service-connected surgical scar of the left ankle. In summary, the Board finds that the criteria for a disability rating greater than 10 percent for a surgical scar of the left ankle have not been met. 3. Left foot hammertoes 2-4, left calcaneal spur, left foot arch collapse and talonavicular joint exostosis In an October 2019 VA hearing, the Veteran asserted that his left foot hammertoes 2-4, left calcaneal spur, left foot arch collapse and talonavicular joint exostosis ("left foot disability") has worsened. During the appeal period, the Veteran's left foot disability has been rated based on the criteria for acquired flatfoot under 38 C.F.R. § 4.71a, DC 5276. The Veteran's left foot disability was rated previously under DC 5284. In February 2020 the Board remanded for a new VA examination. In a May 2021 rating decision, the RO increased the disability rating for the left foot disability to 20 percent. The Veteran was given a VA examination in May 2021. The examiner diagnosed the Veteran with left foot hammertoes 2-4, left foot calcaneal spur, left foot arch collapse, and left foot talonavicular joint exostosis (DJD). The Veteran experienced foot pain and tenderness as well as flare-ups of the left foot that occur weekly. The left foot flare-ups are moderate and last 2-5 hours. The left foot flare-ups are precipitated by standing and are alleviated by rest. He reported functional loss as foot pain and tenderness cause difficulty with physical exertion and prolonged standing. The examiner noted left foot pain that is accentuated through use and manipulation. There was no indication of swelling, callouses, extreme tenderness of the plantar surfaces or spasms of the achilles tendon. He tried arch supports but that did not alleviate the symptoms. He had decreased arch height upon weight bearing but no marked deformity, pronounced pronation or inward bowing of the achilles tendon. The examiner noted that the Veteran experienced moderate calcaneal spur, talonavicular joint exostosis (DJD) of the left foot. Here, the evidence of record establishes that the Veteran's left foot disability was primarily manifested by pain accentuated on use and manipulation (i.e., stretching), which was not relieved by orthotics. Due to the lack of objective evidence of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, the Veteran's left foot disability does not warrant a 30 percent rating for the applicable rating period. The Board has considered, in compliance with Deluca, the extent to which a higher rating is warranted for functional loss due to the service-connected left foot disability. The Veteran reported pain and stiffness aggravated with walking and standing and increased pain with repetitive use of her foot. The Board finds the Veteran's statements regarding the pain to be credible. Nevertheless, the Board also finds that the 20 percent rating currently assigned takes into consideration the Veteran's complaints of left foot pain and resulting functional impairment. Accordingly, the Board finds that a higher rating is not warranted based on functional loss. 4. Bilateral ankle disabilities The Veteran's bilateral ankle disabilities currently are rated under DC 5270. In an October 2019 VA hearing, the Veteran has asserted that his ankle disabilities worsened. The Veteran's ankle disabilities were rated previously under DC 5299-5271. In February 2020 the Board remanded for a new VA examination. In a May 2021 rating decision, the RO increased the Veteran's disability rating for each ankle disability to 30 percent. The Veteran was afforded a new VA examination in May 2021. In this examination, he was diagnosed with ankylosis of the subtalar or tarsal joint in both ankles and post-operative residuals of left ankle injury with pain and limitation of motion and the right ankle with residuals of right ankle injury. He reported functional loss due to pain. He also reported flare-ups of the right ankle occur 2-4 times a week that are severe. The right ankle flare-ups last 2-5 hours and are precipitated by prolonged standing The right ankle flare-ups are alleviated by rest. He further reported flare-ups of the left ankle occur 2-4 times a week that are severe. The left ankle flare-ups last 2-5 hours and are precipitated by prolonged standing. The left ankle flare-ups are alleviated by rest. There was no reported instability of the ankles. The ROM of the Veteran's ankles could not be tested as the ankles are ankylosed. Both ankles were found to be in dorsiflexion, between 0 degrees and 10 degrees. Both ankles also showed ankylosis of the tarsal or subastragalar joint in poor weight-bearing position. The examiner did not find abduction, adduction, inversion, or eversion deformity. The Board finds that the preponderance of the evidence is against assigning a disability rating greater than 30 percent for either of the Veteran's service-connected bilateral ankle disabilities. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, ankylosis, reduced range of motion, and weakness. Even considering the lay reports of symptoms and functional loss, the symptoms do not more nearly approximate ankylosis of either ankle in plantar flexion at more than 40 degrees or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity (as is required for a disability rating greater than 30 percent for either ankle). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to disability ratings greater than 30 percent for either of his service-connected bilateral ankle disabilities. In summary, the Board finds that the criteria for a disability rating greater than 30 percent for residuals of a right ankle injury or for post-operative residuals of left ankle injury with pain and limitation of motion have not been met. Service Connection 5. Right hip disability The Board finds that the evidence reasonably supports granting the Veteran's claim of service connection for a right hip disability as secondary to his service-connected bilateral ankle disabilities. The Veteran contends that his right hip disability is due to service, to include as due to his service-connected bilateral ankle disabilities. After resolving any reasonable doubt in the Veteran's favor, the record evidence supports his assertions regarding an etiological link between his current right hip disability and his service-connected bilateral ankle disabilities. The Veteran has satisfied the first two elements for secondary service connection. He was diagnosed as having right hip degenerative arthritis at a May 2021 VA examination. It is undisputed that service connection is in effect for bilateral ankle disabilities. Thus, the determinative question is whether there is a nexus between the Veteran's right hip disability and his service-connected bilateral ankle disabilities. On this matter, the evidence is in relative equipoise. In other words, there is evidence which both support and goes against finding that the service-connected bilateral ankle disabilities caused or aggravated the right hip disability. On the one hand, a May 2021 VA examination included a diagnosis of degenerative arthritis of the right hip. This examiner opined that the Veteran's right hip disability is at least as likely as not related to his service-connected ankle disabilities. The rationale for this opinion was that the Veteran compensated for his ankle pain by placing more weight and pressure on the hip causing damage and over time it has caused the degeneration of the right hip. On the other hand, this examiner also opined in May 2021 that it was less likely than not that the Veteran's service-connected bilateral ankle disabilities caused or aggravated his right hip degeneration. Unfortunately, the May 2021 VA clinician did not explain why she provided 2 entirely contradictory opinions concerning the contended etiological relationship between the Veteran's right hip disability and his service-connected bilateral ankle disabilities. Nevertheless, there now exist opinions which both support and go against the Veteran's secondary service connection claim. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for a right hip disability as due to service-connected bilateral ankle disabilities is warranted. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.