Citation Nr: 21010933 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 12-30 850A DATE: February 26, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for a left ankle sprain is denied. Entitlement to an initial disability rating in excess of 10 percent for a right knee strain is denied. Entitlement to an initial disability rating in excess of 20 percent for a lumbar strain is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s left ankle sprain manifest as moderate limitation of motion. 2. Throughout the entire appeal period, the Veteran’s right knee strain manifest as flexion limited to 45 degrees. 3. Throughout the entire appeal period, the Veteran’s lumbar strain manifest as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for evaluation for an initial disability rating in excess of 10 percent for a left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.71a, Diagnostic Code (DC) 5271. 2. The criteria for evaluation for an initial disability rating in excess of 10 percent for a right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.21, 4.71a, DC 5260. 3. The criteria for evaluation for an initial disability rating in excess of 20 percent for a lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.21, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty service from November 1995 to October 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Procedurally, the Board notes that the Veteran appealed a September 2015 Board decision to the U. S. Court of Appeals for Veterans Claims (Court), and in a January 2017 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), partially vacated the November Board decision, and remanded the matters to the Board for readjudication consistent with the JMPR. Subsequently, the issues were remanded by the Board in June 2017, May 2018, and June 2020 primarily due to inadequate VA examinations. In particular, the July 2013 VA examinations were not complaint with Correia v. McDonald, and the August 2017 VA examiner did not opine on whether the Veteran’s functional ability was significantly limited with repeated use or during flare ups. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, in the February 2019 VA examinations, the VA examiner did not provide an explanation for his conclusion that the Veteran’s conditions “would be variable based on degree of repetitive use or flare.” In the June 2020 Board remand, the RO was requested to provide new VA examinations. The Veteran was afforded new VA examinations in October 2020. These examinations were adequate because they included explanations and described range of motion (ROM) for the Veteran’s conditions due to repeated use over time and flare ups. Therefore, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Board must also consider any additional functional loss the Veteran may have sustained by virtue of other factors: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria”). Additionally, the Board notes that the Veteran’s right knee strain and lumbar strain conditions are currently rated under DCs 5260 and 5237 respectively. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, these DCs were not changed. 1. Entitlement to an initial disability rating in excess of 10 percent for a left ankle sprain is denied. The Veterans contends his left ankle sprain warrants a higher disability rating. Currently, he has a 10 percent disability rating effective August 22, 2011. 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 DCs “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. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s 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. Prior to the regulatory change, under DC 5271 a 10 percent rating was warranted for moderate limitation of motion. 38 C.F.R. § 4.71a, DC 5271. A 20 percent rating was warranted for marked limitation of motion. Id. For VA purposes, a normal range of ankle motion is from 45 degrees of plantar flexion to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). Id. A 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Id. The amended criteria are more favorable to the Veteran and will be considered for determining if an increased disability rating is warranted for the Veteran’s left ankle sprain. There are additional DCs that apply to ankle disabilities. 38 C.F.R. § 4.71a, DC 5270 pertains to ankylosis of the ankle. 38 C.F.R. § 4.71a, DC 5272 pertains to ankylosis of the subastragalar or tarsal joint. 38 C.F.R. § 4.71a, DC 5273 pertains to malunion of the os calcis or astragalus. 38 C.F.R. § 4.71a, DC 5274 pertains to an astragalectomy. In a September 2011 VA examination, the Veteran reported having recurrent left ankle sprains, usually twice per year, which lasted 1-2 weeks. He had not had any incapacitating episodes and denied having flare-ups. Range of motion measurements included at least 45 degrees of plantar flexion and at least 20 degrees of plantar dorsiflexion (extension). After repetitive-use testing with three repetitions, ranges of motion were the same. There was no pain on palpation or instability. The examiner indicated there was no functional loss or impairment of the left ankle, and x-rays were normal. In the October 2020 VA examination, the Veteran’s plantar flexion and dorsiflexion was to 20 degrees. The VA examiner noted that ROM itself did not contribute to a functional loss, but the examiner noted there was pain during the examination that caused functional loss. Also, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. The Veteran was not being examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In terms of ROM, plantar flexion and dorsiflexion was to 15 degrees. The examination was not conducted during a flare up. However, the VA examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups. In terms of ROM, plantar flexion and dorsiflexion was to 15 degrees. Additionally, muscle strength was normal. There was no ankylosis of the subastragalar or tarsal, and no malunion of the os calcis or astragalus. Also, the VA examiner determined that there was no evidence of pain on passive ROM nor non-weight bearing testing for the Veteran’s left ankle. VA treatment records dated during the period of appeal note consistently note that the Veteran had ankle pain, but do not specify range of motion measurements or severity level. Based upon review of the record, the Board finds that the Veteran’s left ankle sprain is best contemplated by the 10 percent criteria under DC 5271. There is no evidence of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. The Veteran’s plantar flexion and dorsiflexion is limited to, at worst, to 15 degrees. He has limited ROM, but the evidence does not show that it was more accurately described as “marked.” For instance, the Board notes that the Veteran could perform repetitive motion with no additional loss in ROM. His strength was normal, showing that he did not have weakness in his ankle. He retained nearly half of his plantar flexion and dorsiflexion. These factors weigh against a finding that the severity of the Veteran’s limitation of ankle motion is more accurately described as “marked.” The measurements do not fall close to what medical experts consulted by VA determined to be “marked,” and instead fall clearly within the range considered to be “moderate.” Additionally, the Board has considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no probative evidence that these factors caused limitation of function equivalent to marked limitation of motion. Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. A disability rating in excess of 10 percent for a left ankle sprain is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for a right knee strain is denied. The Veteran contends his right knee strain warrants a higher disability rating. Currently, he has a 10 percent disability rating effective August 22, 2011. DC 5260 contemplates limitation of flexion of the leg. Under DC 5260, a 10 percent rating is warranted when flexion is limited to 45 degrees. 38 C.F.R. § 4.71a. A 20 percent rating is warranted when flexion is limited to 30 degrees. Id. A 30 percent rating is warranted when flexion is limited to 15 degrees. Id. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004). 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, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In a September 2011 VA examination, the Veteran reported having daily right knee pain, which was worse in the morning and increased with twisting. He denied having flare-ups or incapacitating episodes. ROM measurements included at least 140 degrees of flexion with pain at 130 degrees, and zero degrees of extension without objective evidence of painful motion. After repetitive-use testing with three repetitions, ranges of motion were the same. There was pain on palpation, but no instability. The examiner indicated there was no functional loss or impairment of the left ankle, and x-rays did not show any significant findings or results. In the October 2020 VA examination, the Veteran’s flexion was to 100 degrees. The VA examiner noted that ROM itself does not contribute to a functional loss, but the examiner noted there was pain during the examination that caused functional loss. Also, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. He was not examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In terms of ROM, flexion was to 90 degrees. The examination was not conducted during a flare up. However, the VA examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups. In terms of ROM, flexion was to 90 degrees. Additionally, muscle strength was normal. There was no instability nor subluxation of the right knee. Also, the VA examiner determined that there was no evidence of pain on passive ROM nor non-weight bearing testing for the Veteran’s right knee. VA treatment records dated during the period of appeal note consistently note that the Veteran had knee pain, but do not specify range of motion measurements or severity level. Based upon review of the record, the Board finds that the Veteran’s right knee strain is best contemplated by the 10 percent criteria under DC 5260. There is no evidence of instability or subluxation. Further, throughout the entire appeal period, the Veteran’s right knee strain manifest, at worst, as flexion limited to 90 degrees. The Board has considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no probative evidence that these factors caused limitation of function equivalent to flexion limited to 30 degrees. The Board has also considered whether a separate or increased rating may be assigned under other diagnostic codes, but finds that there is no competent medical evidence of ankylosis, recurrent subluxation or lateral instability, dislocated or removal of semilunar cartilage, extension limited to 5 degrees or more, impairment of the tibia and fibula, or genu recurvatum that would support a separate or increased evaluation under the criteria set forth in Diagnostic Codes 5256 (ankylosis), 5257 ( recurrent subluxation or lateral instability), 5258 (dislocated semilunar cartilage), 5259 (removal of semilunar cartilage), 5261 (limitation of extension), 5262 (malunion or nonunion of the tibia and fibula), or 5263 (genu recurvatum). See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. A disability rating in excess of 10 percent for a right knee strain is denied. 3. Entitlement to an initial disability rating in excess of 20 percent for a lumbar strain is denied. The Veteran contends his lumbar strain warrants a higher disability rating. Currently, he has a 20 percent disability rating effective August 22, 2011. DC 5237 provides for a rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, DCs 5235-5243. Under the General Formula, a 20 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal Increased kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, DC 5237 provides for ratings under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, which allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, DC 5243. For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). In a September 2011 VA examination, the Veteran reported that his back pain occurred daily, was worse first thing in the morning, and increased with sitting in one place for longer than 10 minutes. He did not have problems with standing or walking. The Veteran had been a police officer for 11 years and had not had any incapacitating episodes in the past year. He denied having flare-ups. On examination, ROM measurements included at least 90 degrees of flexion with objective evidence of pain at 70 degrees, at least 30 degrees of extension with pain at 20 degrees, at least 30 degrees of right and left lateral flexion with pain at 20 degrees, and at least 30 degrees of right and left lateral rotation with pain at 20 degrees. After repetitive-use testing with three repetitions, ranges of motion were the same. There was pain on palpation, but no guarding or muscle spasms. There were no signs of radiculopathy or other neurologic abnormalities. X-rays were normal and the examiner indicated that the back condition did not impact the Veteran’s ability to work. In the October 2020 VA examination, the Veteran’s forward flexion was to 70 degrees, extension was to 25 degrees, right lateral flexion was to 20 degrees, left lateral flexion was to 15 degrees, and right and left lateral rotation were to 15 degrees. The VA examiner noted that ROM itself did not contribute to a functional loss, but the examiner noted there was pain during the examination that caused functional loss. Also, there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive-use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. Additionally, muscle strength was normal. There was no ankylosis nor IVDS of the thoracolumbar spine. Also, the VA examiner determined that there was no evidence of pain on passive ROM nor non-weight bearing testing for the Veteran’s back. The Veteran was not examined immediately after repetitive use over time. Pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In terms of ROM, forward flexion was to 60 degrees. The examination was also not conducted during a flare up. However, the VA examiner indicated that the examination is medically consistent with the Veteran’s statements describing functional loss during flare ups. Pain, weakness, fatigability or incoordination significantly limit functional ability with flare ups. In terms of ROM, forward flexion was to 60 degrees. VA treatment records dated during the period of appeal note consistently note that the Veteran had back pain, but do not indicate that forward flexion of the thoracolumbar spine was ever noted to be 30 degrees or less or that there was favorable ankylosis of the entire thoracolumbar spine. Based upon review of the record, the Board finds that the Veteran’s lumbar strain is best contemplated by the 20 percent criteria under DC 5237. There is no evidence of ankylosis nor IVDS. Further, throughout the entire appeal period, the Veteran’s lumbar strain manifests, at worst, as forward flexion to 60 degrees. Additionally, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no probative evidence that these factors caused limitation of function equivalent to forward flexion of 30 degrees or less. Therefore, the preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. A disability rating in excess of 20 percent for a lumbar strain is denied. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.