Citation Nr: 21014041 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-12 618 DATE: March 11, 2021 ORDER Prior to November 6, 2018, a 60 percent rating for reactive airways disease is granted. From November 6, 2018, a 100 percent rating for reactive airways disease is granted. From February 7, 2021, a separate 10 percent rating for bilateral plantar fasciitis is granted. Throughout the appeal period, a 20 percent rating for Achilles tendinopathy of the left ankle and foot is granted. Throughout the appeal period, a separate 10 percent rating for left knee instability is granted. Throughout the appeal period, a separate 10 percent rating for right knee instability is granted. REMANDED The issues of entitlement to increased ratings for bilateral knee, left ankle, and bilateral foot disabilities, and to a total disability rating based on individual unemployability (TDIU), are remanded. FINDINGS OF FACT 1. The Veteran’s reactive airways disease required at least three courses of systemic oral corticosteroids a year during the period prior to November 6, 2018, and daily use of systemic high dose corticosteroids during the period from November 6, 2018. 2. Throughout the appeal period, the Veteran’s left ankle disability, diagnosed as Achilles tendinopathy, has more nearly approximated marked limitation of motion. 3. For the period since February 7, 2021, pursuant to revised rating criteria, a disability rating for bilateral plantar fasciitis separate from a disability rating for left foot metatarsalgia, is assignable and warranted. 4. Throughout the appeal period, the Veteran’s left and right knee disabilities have been manifested by subjective complaints and objective findings of instability in certain positions, including squatting. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, for reactive airways disease for the period prior to November 7, 2018, and a 100 percent rating for the period since are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6602. 2. Throughout the appeal period, the criteria for a 20 percent rating for a left ankle disability diagnosed as Achilles tendinopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271 (2020). 3. For the period since February 7, 2021, the criteria for a separate 10 percent rating for bilateral plantar fasciitis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68; Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). 4. Throughout the appeal period, the criteria for a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, DC 5257 (2020). 5. Throughout the appeal period, the criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to June 2007, January 2008 to January 2009, and January 2010 to April 2011. This matter is before the Board following her appeal of August 2016 and April 2017 rating decisions. In July 2020, the Veteran testified at a Board hearing before the undersigned. Increased Ratings Disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. As a final introductory matter, the Board acknowledges that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Except as specifically discussed below (and excepting the matters being remanded), the revised regulations are either less favorable to the Veteran or inapplicable. 38 U.S.C. § 5110. 1. Reactive Airways Disease The Veteran’s reactive airways disease (RAD), to include bronchial asthma, is rated as 30 percent disabling under 38 C.F.R. § 4.97, DC 6602. A higher 60 percent rating is warranted where FEV-1 is 40 to 55 percent of predicted value; or where FEV1/FVC is 40 to 55 percent; or if there are at least monthly visits to a physician for required care of exacerbations; or where intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required. Id. A maximum 100 percent is warranted where FEV-1 is less than 40 percent of predicted value; FEV-1/FVC is less than 40 percent; or, with more than one attack per week with episodes of respiratory failure; or, with daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. Initially, the Board finds that for the entirety of the period on appeal prior to November 6, 2018, a 60 percent rating is warranted for RAD, as the Veteran has testified, and the record supports, that her RAD required intermittent courses of systemic corticosteroids more nearly approximating three courses per year. For example, VA clinical records show that the Veteran was prescribed an oral prednisone taper for the respiratory problems in July 2014, December 2014, and July 2015. Subsequent clinical evidence shows continued prescriptions for prednisone or other glucocorticoid medications in 2016 and 2017. The Board also notes that in November 2018 and November 2019, VA contract examiners noted the Veteran’s RAD to have related bronchitis that required antibiotic treatment two to three times per year since 2008. Thus, resolving all doubt in favor of the Veteran, the Board finds that, for the period prior to November 6, 2018, a higher 60 percent rating is warranted based on RAD requiring intermittent courses of corticosteroids. 38 C.F.R. § 4.97, DC 6602. Additionally, effective November 6, 2018, the Board finds that an even higher 100 percent rating is warranted, as the record supports that the Veteran’s RAD required daily use of systemic high dose corticosteroids as of that date. In this regard, VA contract examination reports dated November 6, 2018 and in November 2019 expressly indicate that the Veteran’s RAD with bronchitis required daily corticosteroids, identified as 10 mg of prednisone. Those findings are consistent with a subsequent February 2020 private medical record showing the Veteran to have an ongoing prescription for 10 mg of prednisone to be taken daily. In February 2020, at which time the Veteran was observed to be audibly wheezing, she was prescribed prednisone, and it was also noted that she had also been treated one-month prior with prednisone for an asthma exacerbation. In August 2020, a private physician confirmed the Veteran’s daily use of prednisone, at times up to 30 mg per day. Additionally, the Board finds it noteworthy that both the November 2018 and November 2019 examiners noted the Veteran to require outpatient oxygen therapy, though not on a continuous basis. However, she did use it at night for sleep and with physical exertion. Thus, the Board finds that since November 6, 2018, given evidence of daily use of systemic corticosteroids, a higher 100 percent rating is warranted. However, the Board finds that at no time prior to November 6, 2018, is a higher 100 percent rating for RAD warranted. In this regard, pulmonary function testing (PFT or PFTs) prior to November 2018, including PFTs in April 2011, May 2011, September 2012, February 2014, and February 2017 showed FEV-1 of no worse than 80 percent (in February 2017), and FEV1/FVC of no worse than 87 percent (in February 2017). Parenthetically, the Board notes that the post-bronchodilator findings from PFTs are the standard in pulmonary assessment and use of them assures consistent evaluations. See 61 Fed. Reg. 46720, 46723 (Sept. 5, 1996) (VA assesses pulmonary function after bronchodilation as these results reflect the best possible functioning of an individual). Accordingly, those are the values considered, where applicable. Additionally, the Veteran does not assert, and the evidence does not otherwise show that, prior to November 6, 2018, she experienced more than one attack of RAD per week, had respiratory failure, or required the daily use of corticosteroids or immuno-suppressive medications. On the contrary, as discussed above, the evidence dating prior to November 2018 showed periodic attacks or exacerbations requiring intermittent courses of corticosteroids. While there is a notation on the November 2019 VA contract examination report that the Veteran had been using supplemental oxygen since 2017, generally for sleep or with physical exertion, there is no evidence that the Veteran’s RAD required daily use of corticosteroids during the period prior to November 6, 2018. Indeed, a February 2017 VA contract examiner expressly noted that such treatment was not required. Thus, even considering the use of supplemental oxygen at times prior to November 6, 2018, the Board finds that the criteria for a 100 percent rating are not more nearly approximated. To the extent that the record does show daily use of an inhaled corticosteroid prior to November 6, 2018, the Board notes that Diagnostic Code 6602 distinguishes between “inhalational” therapy and “systemic” therapy. By its own language, Diagnostic Code 6602 indicates that bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411 (2006) (noting that “Diagnostic Code 6602 clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids”). Indeed, the Court in LaPointe affirmed the Board’s previous finding that Diagnostic Code 6602 “requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30[%].” [The Board acknowledges that LaPointe is a non-precedential decision but notes that a non-precedential decision may be cited “for any persuasiveness or reasoning it contains.” See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992)]. As a final matter, the Board is cognizant that during her July 2020 hearing the Veteran testified that her condition continued to worsen. Nevertheless, the Veteran has now been assigned the maximum schedular rating for her respiratory disability, and the Board finds that a remand for another examination is not warranted. Thus, in sum, the Board finds that, for the period prior to November 6, 2018, a 60 percent rating, but not higher, is warranted for the Veteran’s RAD, and that, effective November 6, 2018, a higher 100 percent rating is warranted. 2. Bilateral Foot The Veteran is currently in receipt of a 10 percent rating for bilateral plantar fasciitis with left foot metatarsalgia by analogy pursuant to DC 5276 for acquired flatfoot. 38 C.F.R. § 4.71a. However, effective February 7, 2021, the rating schedule was revised to include a diagnostic code for plantar fasciitis. Specifically, pursuant to DC 5269, a 10 percent rating is warranted for bilateral plantar fasciitis, generally, that is relieved by non-surgical or surgical treatment. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5269). Given the foregoing, the Board finds that for the period since February 7, 2021, a separate 10 percent rating is warranted for bilateral plantar fasciitis, in addition to the already assigned 10 percent rating for left foot metatarsalgia under DC 5276. See Copeland v. McDonald, 27 Vet. App. 333 (2015) (supporting that service-connected plantar fasciitis must now be rated pursuant to its specific diagnostic code). The issues of entitlement to a rating higher than 10 percent for bilateral plantar fasciitis and left foot metatarsalgia for the period prior to February 7, 2021, and ratings higher than 10 percent for bilateral plantar fasciitis and left foot metatarsalgia for the period from February 7, 2021, are discussed in the Remand portion below. 3. Left Ankle The Veteran’s left ankle disability, diagnosed as Achilles tendinopathy, is currently rated as 10 percent disabling pursuant to Diagnostic Code 5271 for moderate limitation of motion. 38 C.F.R. § 4.71a. In order to warrant a higher rating under DC 5271, the evidence most show marked limitation of motion. Id. Of note, revised regulations effective February 7, 2021 define marked limitation of ankle motion as less than 5 degrees dorsiflexion and/or less than 10 degrees plantar flexion. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5271). Following a review of the record, the Board finds that marked limitation of the Veteran’s left ankle is more nearly approximated. In this regard, during VA treatment in November 2016, left ankle dorsiflexion was limited to less than 5 degrees with the knee extended. Additionally, while VA examinations in November 2018 and November 2019 revealed left ankle dorsiflexion limited to 15 degrees, plantar flexion limited to 35 degrees, following repetitive-use testing in November 2018, the Veteran’s left ankle was additionally limited to 5 degrees of dorsiflexion and 15 degrees of plantar flexion. The November 2018 examiner further noted that the Veteran “exhibit[ed] very little movement on own with left ankle.” The Veteran was also noted by both ankle examiners, along with a June 2019 private examiner, to wear an orthopedic boot daily for her left ankle, and she testified in July 2020 that her left ankle essentially did not move. The Board finds that the foregoing more nearly approximates marked limitation of left ankle motion, especially during flare-ups or following repetitive use. Thus, the Board finds that the criteria for a 20 percent rating are met. 38 C.F.R. § 4.71a, DC 5271 (2020). The issue of entitlement to an even higher rating is discussed in the Remand below. 4. Left and Right Knees The Veteran’s right and left knee disabilities are currently each rated as 10 percent disabling based on painful motion under DC 5260 for limitation of flexion. 38 C.F.R. §§ 4.59, 4.71a. Following a review of the record, the Board finds that a separate 10 percent rating is also warranted for each knee based on instability. 38 C.F.R. § 4.71a, DC 5257 (2020). While May 2016, March 2018, and October 2019 VA examiners found no objective evidence of knee instability on physical examination, there is no indication that testing was done while the Veteran was in a squatting position. In this regard, post-service physical therapy notes dated in 2012 and 2013 documented complaints of the knees giving way and objective findings of bilateral knee instability with squatting. The Veteran also reported during her private physical therapy that she had some instability with stairs, and during her July 2020 Board hearing, she competently testified as to continued feelings of instability in her knees. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Given the foregoing, the Board finds that separate 10 percent ratings for the left and right knee are warranted for instability. 38 C.F.R. § 4.71a, DC 5257 (2020). The issues of entitlement to even higher ratings for the Veteran’s left and right knee disabilities are addressed in the Remand section below. REASONS FOR REMAND 1. Increased Ratings for Bilateral Knee, Left Ankle, and Bilateral Foot The Board finds that the issues of entitlement to even higher ratings for bilateral knee, left ankle, and bilateral foot disabilities than those assigned above require remand for further development. Initially, the Board finds that new examinations are warranted for each joint. The Veteran’s July 2020 testimony regarding her various joint symptoms suggest that her conditions may have worsened, including her reports of constant feelings of instability in the knees and a lack of movement in the left ankle. Additionally, the rating criteria for evaluating musculoskeletal disabilities, including those involving the knees, ankles, and feet, were amended after the Veteran’s most recent VA examinations. Given the foregoing, the Board finds that the record does not contain sufficient evidence to evaluate the Veteran’s disabilities under the new rating criteria, and that remand is therefore necessary for new examinations. Additionally, given the Veteran’s statements during VA treatment and her July 2020 Board hearing that she receives private treatment related to her various joints, the Board finds that efforts should be made on remand to obtain updated and any relevant outstanding treatment records. 2. TDIU As the development requested for the knee, ankle, and foot disabilities could impact the claim of entitlement to TDIU, the TDIU claim requires remand as inextricably intertwined with the remanded claims for increased ratings for the bilateral knee, left ankle, and bilateral foot disabilities. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the Veteran should also provide a complete or updated employment history. The matters are REMANDED for the following action: 1. With any required assistance of the Veteran, obtain updated and outstanding VA and private treatment records and associate them with the claims file, to include all records related to private treatment for the knees, left ankle, and/or feet since service. If no such records exist, the claims file should be annotated to reflect as such, and the Veteran notified as such. 2. Request from the Veteran a complete post-service work history. 3. After the development requested in item 1 above is completed to the extent possible, schedule the Veteran for a VA examination to assess the current nature and severity of her service-connected right knee, left knee, left ankle, left foot, and right foot disabilities. (a) Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (b) If objective evidence of painful motion is present during range of motion testing, the clinician should indicate, in terms of degrees, where painful motion first began during each tested movement. (c) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination with respect to her knees, state whether the Veteran experiences recurrent subluxation, lateral instability, or patellar instability of the left or right knee, to include in the squatting position. For each knee, if subluxation or lateral instability is found, state whether: (1) the subluxation is recurrent; (2) the instability is persistent; (3) the disability involves a sprain, incomplete ligament tear, or complete ligament tear; and, (4) the Veteran requires a prescribed assistive device and/or bracing for ambulation. For each knee, if patellofemoral instability is found, state whether (1) there is a diagnosed condition that involves the patellofemoral complex; (2) the instability is persistent; and (3) the condition requires a prescription from a medical provider for a brace, cane, and/or walker. For purposes of the opinion, the “patellofemoral complex” is defined as “the quadriceps tendon, the patella, and the patellar tendon.” (d) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of her service-connected knee, ankle, and foot disabilities, and how she characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare-ups, identify the: (1.) frequency; (2.) duration; (3.) precipitating factors; and (4.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up: (1.) flexion of the right leg is limited to 30 degrees or less; (2.) flexion of the left leg is limited to 30 degrees or less; (3.) extension of the right leg is limited to 10 degrees or greater; (4.) extension of the left leg is limited to 10 degrees or greater; (5.) the left ankle is ankylosed or more nearly approximates ankylosis and in what degree A rationale for all opinions expressed should be set forth. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Fagan 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.