Citation Nr: 21013380 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-10 080 DATE: March 9, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee is denied. Entitlement to a rating in excess of 10 percent for left ankle sprain with degenerative joint disease is denied. FINDINGS OF FACT 1. The Veteran’s left knee symptoms have not been manifested by an unrepaired or failed repair of complete ligament tear causing persistent instability. 2. Even considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, his left knee is not productive of flexion limited to 30 degrees or less or extension limited to 10 degrees. 3. Even considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, his left ankle was manifested by no more than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260-61. 3. The criteria for a rating in excess of 10 percent for left ankle sprain with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5010-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1984 to July 1996. These matters were previously remanded by the Board in October 2013, May 2016, and March 2019 decisions for further development. In March 2019, the Board granted an earlier effective date for the Veteran’s award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and in an April 2019 rating decision, the RO assigned an effective date of September 30, 2010, the day following the Veteran’s last date of employment. As such, the TDIU issue is no longer before the Board. In the March 2019 Board decision, the November 2016 VA Knee examination was deemed inadequate for rating purposes as range of motion and instability testing were not performed as the Veteran reported it was too painful; additionally, the January 2014 VA examination was also found to be inadequate as it did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Veteran’s last VA examination for his left ankle was completed in January 2014, over five years prior, and the examination also did not comply with Correia requirements. Therefore, the issues were remanded for new VA examinations. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left knee degenerative joint disease. The Veteran’s left knee instability is rated under Diagnostic Code (DC) 5257 for slight subluxation or lateral instability. In the March 2019 Board decision, the claim was remanded to afford the Veteran a VA examination that complies with Sharp and Correia. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms “mild,” “moderate” and “severe” were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board was to evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5257 under recurrent subluxation or instability, a 10 percent rating is warranted 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 or bracing for ambulation; a 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device ambulation or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent rating is warranted 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. The Veteran was provided the VA examination in September 2020 for his knee. The Veteran reported no current treatment for the left knee, while symptoms included not being able to bend his legs, pain with walking and a limp while he required regular use of a cane for stability and a knee brace as an assistive device. The Veteran reported flare-ups of the left knee, that he described as “constant” and “severe.” Upon examination, the Veteran was found to have no recurrent subluxation or lateral instability in either knee; a history of recurrent effusion was found as Veteran described recurrent swelling while none was noted upon examination. Joint instability was indicated, but the Posterior Drawer and McMurray’s Test could not be performed. Objective evidence of localized tenderness and pain on palpation was noted as mild on the left knee patellar region, medial and lateral joint line. There is no evidence of crepitus. Muscle strength testing showed reduced muscle strength in the left knee as Veteran had a flare-up at the time of examination and complained of pain; Veteran did not have muscle atrophy. No ankylosis was noted. The Veteran’s functional impact due to his knee disability limits him from carrying heavy object any significant distance, climbing ladders, pushing, pulling or lifting repetitively. In applying the former VA Musculoskeletal System and Muscle Injuries Schedule for Rating Disabilities, prior to February 7, 2021, the Veteran did not exhibit objective evidence of moderate recurrent instability or subluxation upon physical examination. The Board finds that results of the joint stability tests and lack of objective evidence weighs in favor of a rating for “slight” rather than “moderate” or “severe” instability or subluxation. The evidence demonstrates that the Veteran’s left knee symptoms have more nearly approximated “slight” rather than “moderate” or “severe” recurrent subluxation or lateral instability throughout the appeal period. Under the revised rating criteria, the Veteran did not exhibit objective evidence of persistent instability caused by an unrepaired or failed repair of a complete ligament tear or a sprain upon physical examination. For the purposes of determining the severity of the Veteran’s left knee instability, the Board finds that the joint stability tests and lack of objective evidence weighs in favor of a 10 percent rating 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.” Furthermore, as the evidence does not show more frequent episodes of giving way or falling as a result of left knee instability, while the Veteran is prescribed bracing and a cane as an assistive device for his left knee, the examination did not show any evidence of recurrent subluxation nor instability. Therefore, the Board finds that the preponderance of the evidence is against a disability picture that more nearly approximated a 20 percent rating under DC 5257 at any point during the appeal period. As such, a rating in excess of 10 percent for left knee instability is not warranted. 2. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left knee limitation of motion. The Veteran’s left knee limitation of motion is rated under DC 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension. In the March 2019 Board decision, the claim was remanded to afford the Veteran a VA examination that complies with Sharp and Correia. Under DC 5260, where limitation of flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a , DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In the January 2014 VA Knees examination, the Veteran’s left knee flexion was noted at limitation of motion to 40 degrees, while there was no limitation of extension. The Veteran did not report flare-ups. In the November 2016 VA Knees examination, the Veteran’s left knee was not tested for range of motion, as he reported pain and was unable to test. X-ray results for the left knee were normal. No muscle atrophy or reduction in muscle strength was noted; no ankylosis was noted nor was there history of recurrent subluxation or lateral instability noted. The Veteran required regular use of bracing for both knees. Post remand, the Veteran was provided the VA examination in September 2020 for his knee. The Veteran reported no current treatment for the left knee, while symptoms included not being able to bend his legs, pain with walking and a limp while he required regular use of a cane for stability and a knee brace as an assistive device. The Veteran reported flare-ups of the left knee, that he described as “constant” and “severe.” Initial range of motion measurements upon examination showed left knee flexion limited to 50 degrees, with no pain noted. There was objective evidence of localized tenderness or pain on the patellar region, medial and lateral joint line, mild severity. There is no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time – pain limited functional ability and range of motion was noted at -15 to 50 degrees of flexion and 50 to -15 degrees of extension. The Veteran was examined during a flare-up and range of motion during the flare-up was described as limitation from -15 to 50 degrees of flexion and 50 to -15 degrees of extension. Muscle strength testing showed reduced muscle strength in the left knee as Veteran had a flare-up at the time of examination and complained of pain; Veteran did not have muscle atrophy. No ankylosis was noted. The Veteran’s functional impact due to his knee disability limits him from carrying heavy object any significant distance, climbing ladders, pushing, pulling or lifting repetitively. Additionally, the Veteran’s range of motion for limitation of extension for the left knee was noted to be limited to 50 degrees. Under DC 5261, which provides ratings under limitation of extension, the examination results do not result in a disability picture that acquiesces with a compensable rating. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for his left knee. Under DC 5260, to warrant a rating in excess of 10 percent, extension must be limited to 30 degrees or less. At no time during the appeal period has the Veteran’s knee been limited to 30 degrees flexion or less. A higher evaluation under DC 5260 of 20 percent is not warranted unless the record shows leg flexion which is limited to 30 degrees. Even considering the Veteran’s reported functional limitations (e.g., left knee pain, requires use of knee brace, pain limiting range of motion after repeated activity and inability to carry or lift heavy objects), the Board finds that the preponderance of the evidence is against a finding the Veteran’s left knee disability warrants an increased rating for limitation of motion. A rating in excess of 10 percent is not warranted. 3. Entitlement to a rating in excess of 10 percent for left ankle sprain with degenerative joint disease The Veteran contends he is entitled to a rating in excess of 10 percent for his service-connected left ankle sprain with degenerative joint disease. In the March 2019 Board decision, the claim was remanded to afford the Veteran a contemporaneous VA examination that complies with Sharp and Correia. The Veteran’s left ankle is rated under DC 5010-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.2. DC 5003 refers generally to degenerative arthritis, whereas Diagnostic Code 5271 provides ratings based on limitation of motion of the ankle. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5271 provides a 10 percent rating for moderate limited ankle motion and a 20 percent rating for marked limited ankle motion. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal dorsiflexion is 20 degrees. Normal plantar flexion is 45 degrees. 38 C.F.R. § 4.71, Plate II. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2016); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). However, evaluations in excess of the minimum compensable rating must be based on demonstrated functional impairment. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The minimum compensable rating has been assigned in this case. The words “moderate” and “marked” as used in the various Diagnostic Codes were not defined in the VA Schedule for Rating Disabilities. 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. The use of terminology such as “marked” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5271 now clarifies that a 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) and a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). No further changes were made to DCs 5270, 5272, 5273, or 5274 under the revised regulations. In the January 2014 VA Ankles examination, the Veteran did not report flare-ups of is left ankle. Left ankle plantar flexion was noted to 45 degrees or greater and dorsiflexion was noted to 20 degrees or greater. There was no objective evidence of painful motion. The Veteran did not have functional loss or impairment of the left ankle and following repetitive-use testing there was no additional limitation in range of motion. Following the March 2019 BVA remand, the Veteran was provided a subsequent VA examination for his left ankle in September 2020. The Veteran reported he experiences flare-ups that were mild, occurring “sometimes throughout the day,” lasting “a few minutes to about one hour.” The Veteran did not report having any functional loss or impairment of his left ankle. Range of motion testing results showed dorsiflexion to 10 degrees and plantar flexion to 45 degrees, with no pain noted on examination. There was objective evidence of localized tenderness or pain on the anterior talofibular ligament that was mild in nature. There was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was examined during a flare-up of his left ankle, and pain was noted to significantly limited functional ability; range of motion was described as dorsiflexion limited to 10 degrees and plantar flexion limited to 45 degrees. Muscle strength was normal, there was no evidence of muscle atrophy, nor was there left ankle ankylosis. The Veteran did require regular use of a cane for stability due to his knee and ankle disabilities. Additionally, there was no evidence of pain in passive range of motion testing or on non-weight bearing. Based on the VA medical examinations afforded to the Veteran, the probative evidence of record does not show marked limitation of motion of the left ankle during any point of the appeal. The Board finds the Veteran’s left ankle disability did not more closely approximate the criteria for a 20 percent rating under Diagnostic Code 5271, even when considering pain and functional loss as set forth in 38 C.F.R. §§ 4.40 and 4.45. With regard to other potentially applicable Diagnostic Codes, the Veteran’s limitation was not more closely described as ankylosis or less than 30 degrees of plantar flexion. As he is able to move his ankle, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). Additionally, the Veteran’s disability may not be rated by analogy to Diagnostic Codes 5272, 5273, and 5274 because he did not have ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus, or an astragalectomy. The Board finds that the most probative evidence of record does not support a disability evaluation in excess of 10 percent for the Veteran’s left ankle disability for the entirety of the appeal period. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.