Citation Nr: 21006574 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 12-26 004 *DATE: ORDER Entitlement to a rating in excess of 20 percent for posttraumatic arthritis of the left ankle is denied. Entitlement to a rating in excess of 20 percent for posttraumatic arthritis of the right ankle is denied. Entitlement to a rating of 20 percent, but no higher, for right knee arthritis limitation of extension is granted. Entitlement to a rating of 10 percent, but no higher, for right knee for limitation of flexion is granted. Entitlement to a rating in excess of 10 percent for left knee arthritis is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left ankle disability is manifested by marked limitation of motion, but does not manifest through ankylosis, malunion, or astragalectomy of the ankle. 2. Throughout the period on appeal, the Veteran’s right ankle disability is manifested by marked limitation of motion, but does not manifest through ankylosis, malunion, or astragalectomy of the ankle. 3. Throughout the period on appeal, the Veteran’s right knee disability has been productive of limitation of extension to 15 degrees and limitation of flexion to 50 degrees. 4. Throughout the period on appeal, the Veteran’s left knee disability has been productive of limitation of extension of 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2019). 2. The criteria for entitlement to a rating in excess of 20 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2019). 3. The criteria for a rating of 20 percent, but not higher, for right knee arthritis limitation of extension have been met for the entire period on appeal. 38 U.S.C. § 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2019). 4. The criteria for a rating of 10 percent, but not higher, for right knee arthritis limitation of flexion have been met for the entire period on appeal. 38 U.S.C. § 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2019). 5. The criteria for a rating in excess of 10 percent for left knee arthritis are not met. 38 U.S.C. § 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Air Force from December 1980 to December 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) located in San Diego, California. This case was previously before the Board. In a December 2018 decision, the Board denied the issues identified above. The Veteran appealed that to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the joint motion. The case was remanded by the Board in November 2019 for additional development. The case has now been returned to the Board for further appellate action. The Board notes that in the Joint Motion of the partied, the Veteran waived any appeal as to the award of a 20 percent rating assigned for residuals of a meniscal repair of the right knee. As such, that issue will not be discussed in this decision. Increased Ratings – Left and Right Ankle Disabilities The Veteran generally asserts that he should have higher ratings for his left and right ankle disabilities as his symptoms are worse than those contemplated by the currently assigned ratings. For the entirety of the period on appeal, the Veteran’s left and right ankle disabilities have been assigned a 20 percent rating, the maximum schedular evaluation under Diagnostic Code 5271 (the criteria for rating limited motion of the ankle). See January 2019, Rating Decision. Accordingly, a higher schedular disability rating under that diagnostic code is not available. An October 2017 VA examination shows that the Veteran reported pain in both ankles limiting his ability to run, and making walking a chore. The Veteran did not report flare-ups and range of motion testing was normal, with both ankles exhibiting dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. No pain was noted during range of motion testing and there was no evidence of pain with weight bearing. There was also no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, or evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions on each ankle with no additional loss of function or limitation of motion after three repetitions. The Veteran was examined immediately after repetitive use over time, and did not demonstrate that pain, weakness, fatigability, or incoordination significantly limited his functional ability. Strength testing was a 5/5 across the board with no evidence of muscle atrophy, ankylosis, instability, dislocation, shin splints, stress fractures, achilles tendonitis, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy. There was no evidence of pain on passive motion testing, or when the joints were used in non-weight bearing activity. An August 2009 VA examination reflects similar notations to those outlined above, with the additional finding of joint function limited by pain, fatigue, weakness, and lack of endurance causing major functional impact, bilaterally. Private treatment records reflect ongoing reports of pain in both ankles, but also reflect strength testing at a 5/5 bilaterally. See October 2016, Private Treatment Record. The uncontroverted evidence demonstrates that the Veteran does not have ankylosis of either ankle, astragalectomy, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy. Therefore, 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, and 5274 are not applicable. In sum, the Veteran is in receipt of the highest schedular rating for the entire period on appeal for limitation of motion of the left and right ankles, and the evidence of record does not support the application of a separate or higher rating under other diagnostic codes. The Veteran has not raised the issue of entitlement to an extraschedular rating for the left and right ankle disabilities, and the Board finds that such issue is not reasonably raised by the record. Accordingly, the Board will not consider such claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board finds that the preponderance of the evidence is against the claims and entitlement to increased ratings for the Veteran’s right and left ankle disabilities is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating – Right Knee The Veteran has asserted that he should have a higher rating for his right knee arthritis as his symptoms are worse than those contemplated by the currently assigned rating. The Board notes that the right knee disability is currently rated pursuant to Diagnostic Code 5010, for arthritis due to trauma and assigned a 10 percent evaluation for noncompensable limitation of motion with pain. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2019). Considering the evidence as a whole, the Board finds that the Veteran is entitled to separate ratings for limitation of flexion and extension. It is noted that the October 2017 VA examination report depicted range of motion testing with flexion limited to 90 degrees, and extension to 0 degrees. Those results would provide non-compensable ratings under both Diagnostic Codes 5260 and 5261, and the Veteran would be assigned a single 10 percent rating for painful motion of the right knee. While the VA examination report is probative, it is outweighed by the cumulative evidence of record, as described below. The October 2017 VA examination reflects that the Veteran reported challenges with walking, running, and ambulating stairs due to his knee disabilities. He further reported more severe pain in the right knee than the left, but denied flare-ups of either side. Limited range of motion was noted as contributing to functional loss due to knee pain and stiffness. Pain was noted on weight bearing with evidence of crepitus, but there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Repetitive use testing was completed and did not demonstrate any additional functional loss or range of motion after three repetitions. The Veteran was examined immediately following repetitive use testing over time, which did not result in functional ability being significantly limited due to pain, weakness, fatigability or incoordination. Muscle strength testing was 5/5 in both flexion and extension. No muscle atrophy, ankylosis, or joint instability was found and there was no history of subluxation noted. The examiner noted that the Veteran had a meniscectomy of the right knee in 2000 and experienced residuals of pain and stiffness from that procedure. Finally, it was documented that the Veteran regularly used a knee brace and cane for assistance in ambulating. Additional VA treatment records show that the Veteran was seen in November 2017 to receive treatment injections to the right knee at which time range of motion testing was noted as “normal,” but specific degrees of testing results were not provided. Additional injections were recorded in May 2018 and November of 2018, with continuing complaints of pain. Earlier VA treatment records from 2009 show continuing complaints of knee pain and the use of bilateral knee braces. Imaging of the knee in May 2009 confirmed degenerative joint disease of both knees and range of motion testing in June 2009 showed flexion limited to 50 degrees with no notation of extension testing. In August 2010 VA physical therapy notes, the right knee showed range of motion limited to 13 degrees of extension and 70 degrees of flexion. October 2014 VA physical therapy treatment notes show range of motion limited to 20 degrees of extension and 90 degrees of flexion. Private treatment records also demonstrate that the Veteran underwent pain management therapy from 2010 through 2013 to address his bilateral knee disabilities as well as back pain. See 2010-2013, Private Pain Care Records. In October 2009, upon review of MRI scans, a private physician recommended a knee replacement of the right knee, noting degenerative changes of both knees. See October 2009, Private Orthopedic Treatment Records. In August 2010, that same private physician noted range of motion testing of the right knee limited to 15 degrees of extension and 50 degrees of flexion. Id. Additional private treatment records from 2016-2019 show ongoing complaints of bilateral knee pain. Those records also show that in March 2016 range of motion testing showed extension to 3 degrees and flexion to125 degrees. In June 2016, testing showed extension to 15 degrees and flexion to 80 degrees, with the Veteran reporting severe worsening pain aggravated by standing and use of stairs. Additional testing in November 2016 showed flexion limited to 78 degrees and extension limited to 15 degrees. Later treatment reports from 2017-2019 from that private medical facility do not indicate range of motion testing, but display ongoing physical therapy notes depicting the Veteran’s ability to complete treatment on a stationary bike with resistance applied, which did not increase knee pain. The Board finds that a rating of 20 percent, but not higher, for limitation of right knee extension is warranted for the entire period on appeal. In this regard, the repeated reports of extension limited to 15 degrees spanning the private treatment records from 2010 to 2016 is compelling evidence of the Veteran’s true disability picture as it is consistently documented over the course of more than six years by two separate treatment facilities. That limitation is also documented in VA physical therapy notes from August 2010, showing extension limited to 13 degrees. The Board has considered the anomaly within the record showing limitation of extension to 20 degrees in a VA treatment note from October 2014. However, in weighing the surrounding evidence which otherwise shows consistent limitation to 15 degrees or less, the Board finds that this record is less reliable and therefore, of less probative value. 38 C.F.R. § 4.7. Accordingly, a 20 percent rating is warranted for limitation of right knee extension for the entire period on appeal. A higher rating of 30 percent is not warranted based on limitation of extension as the probative evidence of record does not demonstrate extension limited to 20 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5261. As to limitation of flexion, the record demonstrates early reports in 2009 and 2010 of limitation to 50 degrees. Swain v. McDonald, 27 Vet. App. 219 (2015). From that time, additional records vary drastically, reporting limited flexion anywhere between 70 degrees to 125 degrees, as outlined above. The Board finds that those reports do not demonstrate a progressive improvement of the disability given the varying dates showing increased severity. For example, October 2014 VA treatment shows flexion limited to 90 degrees, then records from March of 2016 show flexion limited at 125 degrees, but merely months later, limited to 78 degrees. Affording the Veteran the benefit of the doubt, the Board finds that the most probative evidence of record, in this regard, is shown through the two consistent reports demonstrating flexion at 50 degrees as reported through private treatment notes as well as VA treatment records. Due to the fluctuating and differing reports throughout the record, and in providing the Veteran the benefit of the doubt, the Board will apply these consistent findings to the entirety of the period on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the Board finds that the Veteran is entitled to a rating of 10 percent, but not higher, for limitation of right knee flexion. In this regard, limitation of flexion to 50 degrees more closely approximates the compensable rating of 10 percent. A higher rating to 20 percent is not warranted based on limitation of flexion as the Veteran has not demonstrated limitation of flexion to 30 degrees or less, to include due to functional loss resulting from pain, weakness, fatigability, or incoordination. 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2019). The Board has also considered whether separate or increased ratings may be assigned under other diagnostic codes pertaining to the knee, but finds no additional bases upon which to assign a greater evaluation. As discussed above, the Veteran waived any appeal to the 20 percent rating assigned for residuals of meniscal repair. As such, that will not be addressed further. Additionally, there is no medical evidence of ankylosis, recurrent instability or subluxation, malunion or nonunion of the tibia and fibula, or genu recurvatum that would support separate or increased rating under another diagnostic code. Therefore, the Veteran is appropriately rated for right knee arthritis based on compensable limitation of flexion and extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5262, 5263 (2019). Increased Rating – Left Knee The Veteran has asserted that he should have a higher rating for his left knee arthritis as his symptoms are worse than those contemplated by the currently assigned rating. The Board notes that the left knee disability is currently rated pursuant to Diagnostic Code 5010, for arthritis due to trauma and assigned a 10 percent evaluation for noncompensable limitation of motion with pain. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. The October 2017 VA examination report reflected abnormal findings in range of motion testing of the left knee, with flexion to 105 degrees and extension to 0 degrees. The limitation in range of motion was noted as contributing to functional loss due to knee pain and stiffness. There was evidence of pain on weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, which did not result in additional functional loss or limitation of motion. The Veteran was examined immediately after repetitive use over time and functional ability was not significantly limited due to pain, weakness, fatigability, or incoordination. No flare-ups were reported, and muscle strength testing was a 5/5 in flexion and extension. There was no finding of muscle atrophy, no ankylosis, no instability, or history of recurrent effusion. There was no evidence of pain on passive motion testing and no evidence of pain when used in non-weight bearing. Private treatment records have also been considered as they demonstrate ongoing reports of bilateral knee pain, continued use of assistive devices for walking, and the use of a compression stocking on the left leg. Notably, a June 2016 private treatment record depicts range of motion testing of the left knee with extension limited to 10 degrees and flexion limited to 80 degrees. However, that is the only record with such findings. The Board does note that private treatment records reflect more findings as to the right knee than the left knee, and range of motion testing of the left knee was not as prevalent within the medical reports. Nevertheless, the Board considers that evidence as reliable and probative in assessing the severity of the Veteran’s disability. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent in his left knee arthritis. In this regard, there is no indication from the record that he has left knee extension limited to 15 degrees or more. In fact, the Veteran is shown to have left knee extension limited to, at worst, 10 degrees. Further, the examiner considered additional limitation due to pain, weakness, fatigability, or incoordination when reporting the Veteran’s left knee range of motion. Additionally, the private records do not show that the Veteran would be additionally limited due to pain, weakness, fatigability, or incoordination following repeated use over time or during a flare-up. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 10 percent for left knee arthritis, manifested by limitation of extension. As such, a higher rating is not warranted. 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2019). The Board has also considered whether separate or increased ratings may be assigned under other diagnostic codes pertaining to the knee, but finds no additional bases upon which to assign a rating greater than 10 percent. In this regard, there is no medical evidence of ankylosis, recurrent instability or subluxation, dislocated cartilage, removal of cartilage, limitation of flexion to 45 degrees or more, malunion or nonunion of the tibia and fibula, or genu recurvatum that would support separate or increased evaluations under another diagnostic code. As such, the Veteran is appropriately rated for left knee arthritis based on compensable limitation of extension. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5262, 5263 (2019). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate 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.