Citation Nr: 21009101 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 10-13 887 DATE: February 19, 2021 ORDER Entitlement to a rating of 20 percent and no higher for chronic left ankle sprain is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating higher than 10 percent for left knee strain is denied. Entitlement to a separate rating of 10 percent and no higher for instability associated with left knee strain is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 29, 2014 is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, his chronic left ankle strain manifests by marked limitation of motion. 2. The Veteran’s left knee strain manifests by painful motion limited to 130 degrees of flexion. 3. The Veteran’s left knee strain manifests by instability that is not detected upon objective testing. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent and no higher for chronic left ankle sprain have been met under the previous rating criteria. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2019). 2. The criteria for a rating in excess of 10 percent for chronic left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260. 3. The criteria for a rating of 10 percent and no higher for instability associated with chronic left knee strain have been met under the previous rating criteria. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to September 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were denied by a February 2018 Board decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2019, the Court issued an order granting a Joint Motion for Remand (JMR), which served to vacate the February 2018 Board decision. These matters were remanded by the Board in November 2019. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in February 2011. After being notified that the VLJ who presided over the February 2011 hearing was no longer available, the Veteran requested a new hearing and testified before the undersigned VLJ at a hearing in December 2020. Transcripts of both hearings are of record. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the Veteran’s claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to a rating higher than 10 percent for chronic left ankle sprain The Veteran contends that he is entitled to a higher rating because of his left ankle pain and instability. The Veteran’s chronic left ankle sprain is rated under 38 C.F.R. § 4.71a, DC 5271, for limitation of motion of the ankle. Under the version of Diagnostic Code 5271 in effect prior to February 7, 2021, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Words such as “mild”, “slight”, “moderate”, “marked”, and “severe” are not defined in the VA Rating Schedule. 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. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. Under the version of Diagnostic Code 5271 in effect from February 7, 2021, marked and moderate limitation of motion are defined. Marked limitation of ankle motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion; moderate limitation of motion is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2021). The other diagnostic codes pertaining to the ankle are unchanged. The Board finds the older version of the rating criteria are more favorable to this Veteran. Resolving reasonable doubt in the Veteran’s favor, the evidence is at least in equipoise that he has marked limitation of motion of the left ankle under the previous version of Diagnostic Code 5271. The Board acknowledges that the most extreme limitation of motion shown on testing is a limitation of dorsiflexion from 0 to 15 degrees in a March 2010 examination, and plantar flexion limited to 40 degrees in several examinations. Normal dorsiflexion is 20 degrees while normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71. While this level of limitation of motion alone cannot be considered marked, the Board notes that this Veteran also experiences ankle symptoms that are not necessarily demonstrated in range of motion testing. The Veteran has regularly reported instability of his left ankle in treatment records and VA examinations, although instability has not been shown on objective testing. There are multiple June 2009 lay statements indicating that the Veteran walks with a limp. The Veteran testified at his February 2011 hearing that even walking from the parking lot into a building causes him to feel like his left foot is broken. He reported that he uses a soft ankle brace that does not help, and that he uses a cane. The Veteran’s December 2020 hearing testimony was that he cannot walk down an incline or use his left leg to push off the ground because of his left ankle pain. He testified that he did explain these symptoms at his most recent examinations. A December 2020 private treatment note indicates pain over the region of the sinus tarsi and laterally at the ankle that is worse with weightbearing and better with rest, and tenderness in the sinus tarsi especially with subtalar range of motion. The doctor suggested an ankle brace. In this case, the Board notes that the instability and increased pain on weight bearing limits his motion more severely than is showed through goniometer testing. As the Veteran’s symptoms significantly inhibit his ability to walk, which does seem contemplated by a distinctive or emphasized character, the Board will resolve doubt in the Veteran’s favor and find that the motion of his ankle has been markedly limited, as contemplated by the previous version of rating criteria. As such, the Veteran is entitled to a rating of 20 percent. A rating higher than 20 percent is not available under DC 5271 under either the former or the revised rating . There is no evidence in the record of ankylosis of the ankle, which means that a higher rating is not available under DC 5270. 38 C.F.R. § 4.71a, DC 5270. To the extent that the Veteran has attributed shooting pain and numbness in his toes to his left ankle disability, the Board notes that these symptoms are contemplated by the 10 percent rating that the Veteran was assigned for radiculopathy of the left lower extremity. There is no evidence of record that these symptoms are related to the Veteran’s ankle sprain rather than the radiculopathy. For the foregoing reasons, the Veteran is assigned a rating of 20 percent and no higher for his chronic left ankle sprain. 2. Entitlement to a rating higher than 10 percent for left knee strain 3. Entitlement to a separate rating of 10 percent and no higher for instability associated with left knee strain The Veteran contends that he is entitled to a higher rating because of knee pain and instability. The Veteran’s knee has been rated under 38 C.F.R. § 4.71a, DC 5260 based on painful limitation of flexion. The February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code 5257 (instability) and Diagnostic Code 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged. Under Diagnostic Code 5260, as in effect before and after February 7, 2021, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for chronic left knee strain. The most severe limitation of motion showed in the record is 130 degrees, shown in June 2010 VA examinations. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. With regards to the Veteran’s report that he has developed a knot on top of his knee that hurts, the Board notes that knee pain is contemplated by the 10 percent rating that has been assigned. See DeLuca, 8 Vet. App.at 202; Burton, 25 Vet. App. at 1. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). In the Veteran’s case, there is no indication of ankylosis (DC 5256), dislocated or removed semilunar cartilage (DC 5258 and 5260), limitation of extension (DC 5261), or impairment of the tibia and fibula (DC 5262). The Board finds the older version of the rating criteria for instability are more favorable to the Veteran and that a separate compensable rating is available under DC 5257, for recurrent subluxation or lateral instability, as in effect prior to February 7, 2021. Under the older version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is assigned for 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). In this case, the Veteran has reported instability of his knee on multiple occasions, as early as in an April 2009 VA examination. The Veteran reported in his February 2011 hearing that his knee pops and gives way maybe 7-8 times per month, and that he fell down the stairs because of it. In his December 2020 hearing, the Veteran again reported that his knee gives way and buckles, and testified that the instability of his knee caused him to fall and break the big toe on his right foot. The Board recognizes that the Veteran’s knee has consistently been found to be normal during stability testing. However, the old version of DC 5257 does not require objective medical evidence to assign a rating for instability of the knee. English v. Wilkie, 30 Vet. App. 347 (2018). As there is no reason to doubt the credibility of the Veteran’s report of instability, the Board will assign a separate rating of 10 percent for instability of the left knee. However, considering that the instability has not been detected by objective testing, the Board finds that the instability is best characterized as mild. Therefore, a rating higher than 10 percent is not available under the old rating criteria. The criteria for a higher, 20 percent rating are not met under the revised criteria for any period on appeal. There is no evidence of a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, or of unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For the foregoing reasons, the Board finds that the Veteran’s claim for a rating higher than 10 percent under DC 5260 is denied, but that he is entitled to a separate rating of 10 percent and no higher under DC 5257, under the old rating criteria, for his left knee instability. REASONS FOR REMAND 1. Entitlement to a TDIU prior to August 29, 2014 is remanded. The Veteran contends that he is unable to work because of his left ankle and left knee disabilities. As such, entitlement to a TDIU is part and parcel of the claims for an increased rating for the left ankle and left knee. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board recognizes that the AOJ granted entitlement to a TDIU effective August 29, 2014 in a January 2015 rating decision during the pendency of this appeal. This rating decision was issued in response to an August 29, 2014 claim of entitlement to a TDIU. However, the grant of a TDIU for part of a period on appeal does not serve to bifurcate a TDIU claim from an underlying increased rating claim. Payne v. Wilkie, 31 Vet. App. 373, 389 (2019). The Board notes that the AOJ has not had the opportunity to develop and adjudicate the issue of entitlement to a TDIU prior to August 29, 2014, and remands it accordingly. The matters are REMANDED for the following action: 1. After conducting any development deemed appropriate, to include providing appropriate notice to the Veteran and his representative, adjudicate the issue of entitlement to a TDIU prior to August 29, 2014. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.