Citation Nr: 21011580 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 13-17 785A DATE: March 2, 2021 ORDER A 10 percent rating for a right ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. A 10 percent rating for a left ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED The claim for service connection for a right knee disability is remanded. The claim for service connection for a left knee disability is remanded. The claim for a total disability rating based on unemployment (TDIU) is remanded. FINDINGS OF FACT 1. An April 2013 statement of the case (SOC) assigned the Veteran a single 10 percent rating for his bilateral ankle disability. 2. The weight of the evidence supports finding that the Veteran experiences painful motion in both of his ankles. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5270-74. 2. The criteria for a 10 percent rating for a left ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5270-74. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to May 1971 and from October 1972 to May 1973. The Veteran provided testimony before the undersigned Veterans Law Judge at a November 2020 Board hearing. A complete transcript is of record. Increased Rating A 10 percent rating for a right ankle disability is granted. A 10 percent rating for a left ankle disability is granted. The Veteran was assigned a single 10 percent rating for his bilateral ankle disability. He asserts that he is entitled to a separate rating for each ankle because he experiences painful motion in both of them. VA received the Veteran’s service connection claim for a bilateral ankle disability on January 30, 2009. A subsequent February 2010 rating decision granted the Veteran service connection and assigned a noncompensable rating for both ankles, effective the date of claim. The Veteran disagreed with the assigned ratings and a subsequent April 2013 rating decision assigned a 10 percent rating based on painful motion; however, the rating was considered to be for both ankles. Here, the period on appeal begins on January 30, 2009. With respect to disabilities of the ankle, 38 C.F.R. § 4.71a, Diagnostic Codes 5270 through 5274, set forth relevant provisions. Diagnostic Code 5270 evaluates ankylosis of the ankle. The VA examiner of record has not diagnosed ankylosis of the right ankle, the Veteran’s post-service treatment records do not suggest the presence of ankylosis, and the Veteran has not described the symptoms of ankylosis. As such, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5272 concerns ankylosis of the subastragalar or tarsal joint of the left ankle. The VA examiner of record has not found a diagnosis for ankylosis of the subastragalar or tarsal joint, and the post-service treatment records do not suggest the presence of ankylosis of the subastragalar or tarsal joint. As such, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5273 addresses malunion of the os calcis or astragalus. The medical record documents malunion of the right malleolus; however, there has been no documentation of a malunion of the os calcis or astragalus in either ankle. As such, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document removal of the talus bone in either ankle. As such, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran’s disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited impact in that they have been in effect for less than a month and they do not substantively change how the ankle is rated. Rather, the revisions define marked and moderate limitation of motion as it applies to the ankles. Under the revised regulations, marked limitation of motion of the ankle means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and is rated at 20 percent. Moderate limitation of motion means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and is rated at 10 percent. As earlier iterations of the regulations did not define marked or moderate, the Board will adopt these definitions. The Veteran was afforded a VA examination in February 2010 at which he reported experiencing soreness with walking at any distance. The examiner found no swelling or instability. The examiner noted that the Veteran used ankle braces. On examination, the examiner indicated that both ankles appeared to be anatomically normal and both ankles showed plantar flexion to 55 degrees, with dorsiflexion to 15 degrees. Repeated use testing showed no indication of pain, weakness, or fatigue. Joint stability testing showed no indication of instability, in any of the planes of motion. The Veteran provided a statement from a private physician from March 2014. The physician reported that they reviewed the Veteran’s treatment records and conducted in-person examinations in August and September 2013. The physician diagnosed the Veteran with malunion of the right lateral malleolus and a left ankle sprain and caused him “moderate” limitation of motion in both ankles, but specific range of motion measurements were not provided. The Veteran testified at a November 2020 Board hearing that he did not have any difficulties, in terms of range of motion, in either ankle. He reported that the main symptoms in his ankles were pain and swelling. He also testified that he used ankle braces because he experiences instability. The Veteran’s post-service medical records do not reveal any findings consistent with ratings in excess of 10 percent for ankle disabilities. Here, the Veteran is in receipt of the minimum compensable rating, under Diagnostic Code 5010, for painful motion. However, the Veteran has been assigned a single 10 percent rating for both of his ankles. The Board finds that it is appropriate to assign separate 10 percent ratings for the right ankle and for the left ankle. For example, the Veteran reported at the February 2010 VA examination that he experienced pain with walking at any distance. Further, the Veteran credibly testified that he still experiences pain and swelling in both of his ankles at the November 2020 Board hearing. As such, the Board finds that the Veteran has been shown to have painful motion in both of his ankles, which entitles him to a 10 percent rating for a right ankle disability and a 10 percent rating for a left ankle disability. See 38 C.F.R. § 4.59. The Board acknowledges that the March 2014 private physician noted that the Veteran had moderate limitation of both ankles. This would also entitle the Veteran to separate 10 percent ratings for both of his ankles. However, range of motion testing from the February 2010 VA examination only showed a slight, 5 degree loss of dorsiflexion in both ankles and he credibly testified that he did not experience any difficulties with range of motion, in either ankle. Here, it appears the finding by the March 2014 physician, that he had moderate limitation of motion in both ankles was an anomaly because before and after that examination, he did not show findings, or complain of a limitation of motion in his ankles. As such, the Board finds that it would be more appropriate to assign the Veteran a 10 percent rating based on painful motion. See C.F.R. § 4.59 The Board notes that the next higher rating, at 20 percent, requires a more significant, “marked” limitation. Here, at worst, the Veteran has been shown to have a moderate limitation of motion by the March 2014 private physician. Further, the Veteran testified that he did not have a difficulty with a limitation of motion, in either ankle. As such, the Board finds that there has been no clinical or anecdotal evidence that the Veteran’s limitation of motion in either ankle, is best described as, “marked.” In reaching this decision, the Board has considered whether a higher rating can be assigned based on functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint.  38 C.F.R. §§ 4.40, 4.45. Joints, to include ankles, that are actually painful, unstable, or malaligned may be awarded at least a 10 percent rating. See 38 C.F.R. § 4.59. However, the Board has explained that the Veteran is entitled to the minimum compensable rating, for both of his ankles, under these provisions, and as such, a higher rating is not warranted under 38 C.F.R. § 4.59. The Board acknowledges the Veteran’s complaints of ankle pain, swelling and trouble walking but finds that such symptoms are contemplated by the separate 10 percent ratings. The Board also acknowledges the Veteran’s report of ankle instability and his use of ankle braces. However, the evidence of record is not consistent with a finding of “marked” limitation of motion, nor are there any other findings consistent with an increased rating. Accordingly, separate ratings of 10 percent for a right ankle disability and a 10 percent rating for a left ankle disability, is granted. REASONS FOR REMAND Service connection for a right knee disability is remanded. Service connection for a left knee disability is remanded. A total disability rating based on unemployment (TDIU) is remanded. The Veteran asserts that his knee disabilities have been aggravated by his service-connected bilateral ankle disability. The Veteran also testified that he played basketball, while in the Air Force and played between 80 and 100 games a year, which may have also caused his current bilateral knee disability. The Veteran’s service treatment records (STRs) do not show any complaints, treatment, or diagnosis for any knee problems. The Veteran acknowledged this, when he testified that he did not receive any treatment for his knees during his active duty service. However, he credibly testified that his knees would get sore if he played too many games in a row. The Veteran was afforded a VA examination in February 2010 and the examiner provided a negative nexus opinion regarding the etiology of the Veteran’s bilateral knee disability. The examiner explained that secondary service connection was not warranted because there was no evidence-based medicine to indicate that arthritis in one joint (the ankles), would cause another (the knees) to become arthritic. Regarding direct service connection, the examiner explained that there was no in-service medical documentation of knee problems, which created a significant issue in establishing a nexus between his current knee problems and his active duty service. The Veteran’s representative asserted at the November 2020 Board hearing that the February 2010 VA examination was inadequate because the examiner did not cite to the evidence-based medicine and because the examiner failed to consider the possibility of aggravation. The Board also notes that the Veteran has credibly testified that although he did not seek treatment for his knees during his active duty service, his participation in a large number of basketball games, did cause him knee pain. The VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim.  38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability.  38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Veteran’s representative has asserted that the February 2010 VA examination was inadequate, and the Board agrees. Here, the Veteran has been diagnosed with a bilateral knee disability and he has indicated that they may be aggravated by his service-connected bilateral ankle disability. Further, the February 2010 VA examiner found that there was no medical evidence that the Veteran had in-service knee problems; but the Veteran credibly testified that his participation in 80-100 games of basketball, per year, may have also caused his current knee disabilities. As such, the Board finds that the Veteran should be afforded a new VA examination to address his theory of aggravation and for a VA examiner to take into account his testimony regarding the large number of basketball games he participated in, during his active duty service. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board acknowledges that the Veteran’s representative raised the issue of a TDIU at the November 2020 Board hearing. The Veteran had an increased rating claim on appeal. As such, the Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased ratings claims on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In remanding the service connection claims for a bilateral knee disability, the Board finds that the Veteran’s claim for a TDIU is inextricably intertwined and it is also remanded. Accordingly, service connection for a bilateral knee disability and the claim for a TDIU, is remanded. The matters are REMANDED for the following action: 1. Obtain an opinion as to the etiology of the Veteran’s bilateral knee condition. If an opinion cannot be provided without a physical examination, one should be provided. The following questions should be answered: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral knee disability was caused by his service-connected bilateral ankle disability? Why or why not? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral knee disability was aggravated (made worse) by his service-connected bilateral ankle disability? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of the bilateral knee condition by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the knee disabilities. If such cannot be done, it should be explained why. c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee condition either began during or was otherwise caused by his military service? Why or why not? In providing the requested opinion, the examiner should discuss the relevance of Veteran’s testimony that he participated in 80-100 basketball games per year, while in the Air Force, and that he had knee soreness when he played too many games in a row. The examiner should also consider the recent medical records from Dr. Nixon suggesting that the Veteran’s knee problems began in approximately 1996 (approximately 25 years after separating from service) (Medical Treatment Record- Non-Government Facility, received 1/11/21). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.