Citation Nr: 21014156 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-26 359 DATE: March 11, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee arthritis with chondromalacia is denied. Entitlement to a disability rating in excess of 10 percent for left knee arthritis with chondromalacia is denied. Entitlement to a disability rating in excess of 10 percent for right ankle tendonitis is denied. Entitlement to a disability rating in excess of 10 percent for left ankle tendonitis is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability has been manifested by no worse than flexion to 125 degrees and extension to 0 degrees with pain. 2. The Veteran’s right knee disability has been manifested by no worse than flexion to 125 degrees and extension to 0 degrees with pain. 3. The Veteran’s right ankle disability has been manifested by no worse than moderate limitation of motion. 4. The Veteran’s left ankle disability has been manifested by no worse than moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee arthritis with chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. 2. The criteria for a rating in excess of 10 percent for left knee arthritis with chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. 3. The criteria for a rating in excess of 10 percent for right ankle tenonitis have not been met. 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 5271. 4. The criteria for a rating in excess of 10 percent for left ankle tenonitis have not been met. 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 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to April 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge. This matter was previously remanded by the Board in November 2019 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate 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 and 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Entitlement to a disability rating in excess of 10 percent for right knee arthritis with chondromalacia Entitlement to a disability rating in excess of 10 percent for left knee arthritis with chondromalacia The Veteran contends that she is entitled to a higher rating because as her bilateral knee pain has a greater impact than her current rating suggests. The Veteran’s left knee condition has been rated under Diagnostic Codes 5260-5003 and her right knee condition has been rated under Diagnostic Codes 5299-5260. Hyphenated diagnostic codes are used when a rating under one code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The assigned Diagnostic Code 5260 suggests that the left and right knee disabilities are rated based on compensable limitation of flexion or extension. 38 C.F.R. § 4.71a. A review of the evidence reflects that the left and right knee disabilities have manifested as degenerative arthritis and been rated based on painful noncompensable limitation of motion, and that the left and right knee disabilities have not had compensable limitation of motion (i.e. limitation of flexion or extension) at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5003, to show that the left and right knee disabilities with osteoarthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the left and right knee arthritis with chondromalacia to 5003 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. 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 diagnostic codes “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). 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. 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. However, Diagnostic Codes 5003 and 5260 were not changed by the updated regulations. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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. § 4.71a; 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Diagnostic Code 5260 provides a noncompensable rating when leg flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. Diagnostic Code 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. On examination in January 2020, the Veteran was found to have right knee flexion to 125 degrees and no limitation of extension. Similarly, the left knee was shown to have flexion to 125 degrees and no limitation of extension. Although the examiner noted that pain, repetitive use, and flare ups caused functional loss, she also estimated that there was no additional loss of range of motion due to pain, repetitive use, or flare ups. On examination in February 2012, the Veteran was found to have right and left knee flexion to 130 degrees and no limitation of extension. Further, the examiner indicated that painful motion started at 130 degrees of flexion. The examiner noted the flare ups occur two to three times per week and limit the Veteran’s ability to climb stairs, bend, stand, or walk for prolonged periods of time. The Board finds that these descriptions are similar to those offered by the Veteran at her January 2020 examination. At no point during the appeal period was the Veteran’s left or right knee limited to 45 degrees of flexion or 10 degrees of extension, the minimum required for a compensable rating. As such, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003 is appropriate. 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, 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). A rating under Diagnostic Code 5257 is not warranted as the Veteran has not been shown to have lateral or patellar instability, a rating under Diagnostic Code 5258 or 5259 is not warranted as there is no indication of involvement of the semi lunar cartilage, and a rating under Diagnostic Code 5256, 5262, or 5263 is not warranted as there is no evidence of ankylosis, malunion of the tibia, or genu recurvatum. In reaching these determinations, the Board acknowledges the Veteran’s functional limitations on standing, walking, and bending due to the pain associated with her bilateral knee disability, to include during flare-ups. VA medical examinations note the Veteran’s right and left knee disability functional effect as decrease mobility. However, limited mobility/decrease range of motion is appropriately contemplated within the criteria. As such, the Board does not find that an increased rating is warranted for the Veteran’s noted functional loss in excess of the provided 10 percent already granted for painful and limited motion. In addition to the clinical findings, the Board has also considered the Veteran’s statements regarding her pain and weakness. However, the Board finds that the Veteran’s listed disability symptoms do not warrant any additional increased ratings at this time as her impairments are contemplated in the currently assigned ratings. In conclusion, based on the clinical evidence, and the Veteran’s subjective complaints, the Board finds that an increased rating in excess of 10 percent disabling for degenerative arthritis with chondromalacia for both the right and left knee is denied. Entitlement to a disability rating in excess of 10 percent for right ankle tendonitis Entitlement to a disability rating in excess of 10 percent for left ankle tendonitis The Veteran contends that she is entitled to a higher rating because the pain caused by her ankle disabilities is not adequately compensated by the 10 percent rating currently assigned. 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 diagnostic codes “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). 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. 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, the Veteran’s left and right ankle tendonitis are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, 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. As of February 7, 2021, under the amended criteria, Diagnostic Code 5271 provides a 10 percent rating for moderate limited motion of the ankle, defined as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion. A maximum 20 percent rating is warranted for marked limited motion of the ankle, defined as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 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). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the 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. § 4.71a; 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.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). At her January 2020 VA examination, the Veteran reported that her ankle was painful daily, ranging from a 5 on a good day to a 10 on a bad day. Further, her ankle pain prevented her from driving or maintaining her house. The examination revealed right ankle dorsiflexion to 15 degrees and plantar flexion to 30 degrees and left ankle dorsiflexion to 15 degrees and plantar flexion to 35 degrees. There was no additional observed limitation following repetitive use and although the examiner noted additional functional loss due to pain, the estimated range of motion was the same. The examiner noted that the Veteran had flare ups and reported estimated range of motion consistent with what was observed on examination. The examiner documented that there was no ankylosis of either the right or left ankle. No ankle instability or dislocation was found on testing. Further, upon examination, no deformity and no loss of bone or muscle strength was found. The examiner noted that functional impact prevented prolong periods of standing or walking. At her February 2012 VA examination, the Veteran was found to have right ankle dorsiflexion to 10 degrees and plantar flexion to 20 degrees and left ankle dorsiflexion to 15 degrees and plantar flexion to 25 degrees. The examiner noted that pain started at the same degrees of dorsiflexion and plantar flexion in both ankles. The examiner documented that there was no ankylosis of either the right or left ankle. No ankle instability or dislocation was found on testing. Further, upon examination, no deformity and no loss of bone or muscle strength was found. The examiner noted that functional impact prevented prolong periods of standing or walking. At both examinations the Veteran described similar effects of her ankle disabilities. The Veteran noted that her ankles had constant pain described as a four out of ten, with swelling that would last a day to two weeks. In evaluating under the prior regulations, the Board notes that while the Veteran’s bilateral ankles are noted with limitation in range of motion; the limitation in not of such severity to warrant an increased rating in excess of 10 percent. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the pain prevents driving and house maintenance would not result in symptoms more nearly approximating marked limited motion. Indeed, the medical evidence indicates she maintains only slightly decreased plantar flexion and dorsiflexion of the right ankle. Similarly, the Veteran only has slightly decreased plantar flexion and dorsiflexion for the left ankle. While she is noted to have pain for both ankles, to include with prolonged standing and walking, and such has been shown to interfere with some aspects of daily living, it is not of such a severity to more closely approximate marked limitation of motion even during a flare up. Moreover, there is no evidence of instability of the joint or muscle impairment. In evaluating the disability under the new regulations, the Board notes that a rating in excess of 10 percent starts at less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. In this case, the Veteran’s ankles have not been shown to be limited to less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. As such, the Board finds that, for the entirety of the period on appeal, the regulations are equally favorable for the Veteran. The Board has considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Diagnostic Codes 5270 and 5272 are not appropriate as no ankylosis has been shown. Diagnostic Code 5273 is not appropriate because no malunion of the joint has been shown. Lastly, Diagnostic Code 5274 is not appropriate as there is no evidence the Veteran has undergone astragalectomy surgery to stabilize the ankle. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for left and right ankle tendonitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.