Citation Nr: 21021214 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-28 945 DATE: April 12, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for left knee arthritis (formerly patella femoral pain syndrome) is denied. Prior to October 5, 2020, entitlement to a 10 percent evaluation for achilles tendonitis, left ankle is granted. From October 5, 2020, entitlement to an evaluation in excess of 10 percent for achilles tendonitis, left ankle is denied. Entitlement to a total disability rating for individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has arthritis of the left knee that causes pain and limitation of flexion to 125 degrees, at worst, with no instability. 2. Prior to October 5, 2020, the Veteran's left ankle demonstrated painful motion. 3. From October 5, 2020, the Veteran's left ankle causes moderate limitation of motion and pain, but no more. 4. The Veteran's service-connected disabilities do not preclude gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent for left patellofemoral pain syndrome with degenerative arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257-5020. 2. Prior to October 5, 2020, with resolution of the doubt in favor of the Veteran, the criteria for a 10 percent rating for a left ankle disability are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5271. 3. From October 5, 2020, the criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5271. 4. The criteria for entitlement to a total disability rating for individual unemployability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty in the United States Army from April 1994 to July 2001. Service from July 2001 to February 2005 was deemed dishonorable for VA benefit purposes. Increased rating claims Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Board will consider entitlement to “staged” ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal exertion, strength, speed, coordination, and endurance. It is essential that the examination upon 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 the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are related considerations. 38 C.F.R. § 4.45 1. Entitlement to an evaluation in excess of 10 percent for left knee arthritis (formerly patella femoral pain syndrome) The Veteran filed an informal claim for an increased rating for his left knee disorder in April 2012. The Veteran’s left knee disorder is rated under Diagnostic Code 5257-5020. While the initial rating listed the disability under these codes, the discussion noted no instability, and a full range of motion that was found to be painful, warranting assignment of a 10 percent rating. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5020, synovitis, will be rated on the basis of limitation of motion, as arthritis, under the appropriate Diagnostic Codes for the specific joint or joints involved. When 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 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5257 provides ratings based on recurrent subluxation or lateral instability, which can be rated as slight, rated at 10 percent; moderate, rated at 20 percent; or severe, rated at 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5257, (prior to February 7, 2021). As instability is not shown the more recent provisions are not for application and provide no basis for an increased rating. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Separate ratings for knee disabilities may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Evaluations for knee impairment can also be assigned due to ankylosis, tibia and fibula impairment, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis, tibia and fibula impairment, or genu recurvatum, these diagnostic codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. An April 2012 treatment record showed that the Veteran presenting with intermittent pain in the left knee. The Veteran was afforded a VA examination of his left knee in October 2012. The examiner diagnosed patellofemoral syndrome. He reported symptoms of pain and pressure and an inability to perform square or leg workout with high pressure on the knee. He also reported flare ups that cause pain and popping. Range of motion testing showed normal flexion and extension with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing with no additional limitations. The examiner noted no functional loss. The Veteran had pain on palpation of the left knee. Muscle strength testing and joint stability tests were normal. There was no evidence of recurrent patellar subluxation or dislocation. There was no tibial or fibular impairment and no meniscal conditions were found. The Veteran's left knee disorder impacted his ability to work in that “left knee patella femoral pain syndrome rendered him unable to secure and maintain substantially gainful employment for prolonged heavy labor. The condition does not impact intermittent heavy, medium, mild or sedentary labor.” A December 2012 MRI report indicated meniscal tears in the Veteran’s left knee. A May 2013 rating decision continued the Veteran's 10 percent rating for his left knee. The Veteran appealed this decision. In a May 2020 statement, the Veteran reported that his left knee pain had worsened. The Veteran underwent a VA examination in October 2020. The examiner diagnosed degenerative arthritis and patella-femoral pain syndrome of the left knee. The Veteran reported symptoms of worsening pain and stiffness. He also reported flare ups that make it painful to walk and stand. Range of motion testing showed flexion limited to 130 degrees and normal extension with pain noted on rest and nonmovement. The Veteran was able to perform repetitive use testing with no additional limitations. The examiner noted no functional loss. The Veteran’s left knee was tender to palpation. There was objective evidence of crepitus and pain with weight-bearing. Although the Veteran was not examined with repeated use over a period of time or during a flare up, the VA examiner determined that his left knee would be additionally limited by pain to 125 degrees of flexion. Regarding passive range of motion testing, there was objective evidence of pain on the left but not the right. Regarding non-weight bearing, there was objective evidence of pain on the left but not the right. Muscle strength testing was 4/5 with no atrophy. Joint stability tests were normal and there was no evidence of recurrent patellar subluxation or dislocation. There was no tibial or fibular impairment and no meniscal conditions were found. The Veteran’s left knee disorder impacted his ability to work in that he reported that he lost one to two weeks of work in the prior 12 months and that his arthritis of the left knee makes it difficult to sit or stand for any length of time. Upon review of the record, the Board finds that an increased rating is not warranted. The evidence shows that the Veteran has consistently experienced painful motion in his left knee through the period on appeal. However, the evidence does not show limitation of flexion or extension that would warrant compensable ratings under Diagnostic Codes 5260 or 5261. Furthermore, there is no evidence, objective or lay, of recurrent subluxation or lateral instability. The Board notes that the VA examiner considered whether flare ups or repeated use over a period of time would provide for a higher rating and found they do not. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The Board notes that meniscal tears were noted during a December 2012 MRI, but the VA examiners consistently found no meniscal condition. To the extent that there are meniscal tears that cause pain, the Veteran is already compensated for the painful motion. The record does not show frequent episodes of locking or effusion for a higher, 20 percent rating under Diagnostic Code 5258. Based on the foregoing, the preponderance of the evidence is against the claim. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107   2. Prior to October 5, 2020, entitlement to a compensable evaluation for achilles tendonitis, left ankle 3. From October 5, 2020, entitlement to an evaluation in excess of 10 percent for achilles tendonitis, left ankle The Veteran's left ankle disorder is rated under Diagnostic Code 5271. Diagnostic Code 5271 provides a 10 percent disability rating for moderate limitation of motion of the ankle and a 20 percent disability rating for marked limitation of motion of the ankle. Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. The Veteran was afforded a VA examination of his left ankle in October 2012. The examiner noted a diagnosis of achilles tendonitis. The Veteran reported continuous throbbing of the ankle and flare ups, requiring him to stop activity and stretch the ankle. Range of motion testing showed plantar flexion was normal with no evidence of painful motion. Dorsiflexion was limited to 15 degrees, with no evidence of painful motion. The Veteran was able to perform repetitive use testing with no additional limitations. No functional loss was noted. He had localized tenderness or pain on palpation. Muscle strength testing was normal. There was no laxity or ankylosis. X-ray imaging was normal. Regarding functional impact, the examiner remarked that There is no assessment of residuals of left achilles tendonitis that would render him unable to secure and maintain substantially gainful employment for heavy, medium, mild or sedentary labor. (Note: the decrease in ROM bil ankles is considered a normal finding d/t the equal finding contralaterally and is unrelated to any residual of tendonitis). A May 2013 rating decision continued the Veteran’s noncompensable rating for his left ankle disorder. The Veteran appealed this decision. In a May 2020 statement, the Veteran reported that his left ankle pain had worsened. The Veteran underwent a VA examination of his left ankle in October 2020. The examiner noted diagnoses of degenerative arthritis and achilles tendonitis. The Veteran reported pain when walking and flare ups when using the treadmill. Functional impairment precluded his from being able to toe off without pain and caused an altered gait. Range of motion testing showed plantar flexion limited to 35 with evidence of pain. Dorsiflexion was limited to 15 degrees with pain. The Veteran was able to perform repetitive use testing with no additional limitations. However, the examiner opined that after repeated use over time and during a flare up, the Veteran would be limited to 10 degrees of dorsiflexion and 30 degrees of plantar flexion. Regarding passive range of motion testing, there was objective evidence of pain on the left but not the right. Regarding non-weight bearing, there was objective evidence of pain on the left but not the right. His left ankle was tender to palpation. There was evidence of pain with weight bearing and objective evidence of crepitus. Muscle strength testing was 3/5 for plantar flexion and 4/5 for dorsiflexion, with no muscle atrophy. There was no laxity or ankylosis. The Veteran’s left ankle disorder impacted his ability to work in that he reported that he lost one to two weeks of work in the prior 12 months and that it hurt to talk and toe off due to ankle pain. A December 2020 rating decision increased the Veteran’s rating for his left ankle to 10 percent, effective October 5, 2020. Upon review of the record, the Board finds that a 10 percent rating is warranted for the entire period on appeal. Prior to October 5, 2020, the record shows evidence of painful motion and flare-ups requiring a change in activity. Therefore, as the intent of the rating criteria is to compensate for painful motion of the joint, the Board finds that the minimum compensable rating is warranted. However, during the entire rating period on appeal, an evaluation is excess of 10 percent is denied. At worst, the October 2020 VA examination showed moderate limitation of motion of the left ankle, with consideration of flare ups and repetitive use. There was no evidence of instability or ankylosis. While the Veteran is shown to experience pain in his ankle, it was not shown that the pain produced any additional functional limitation in the ankle, and pain alone cannot support a rating in excess of 10 percent. 38 C.F.R. § 4.59. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). 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. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not. Therefore, a rating in excess of 10 percent is not warranted. 4. Entitlement to a total disability rating for individual unemployability (TDIU). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. With a combined 70 percent rating, the Veteran has met the threshold for schedular consideration for TDIU under 38 C.F.R. § 4.16 (a). Therefore, the question is whether his service-connected disabilities precluded him from obtaining or engaging in substantially gainful employment, per 38 C.F.R. § 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). First, the Board notes that despite notification and requests, the Veteran has not submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to substantiate his claim of TDIU. Second, the record shows that the Veteran has been employed during the entire period on appeal. There is no legal entitlement to a TDIU rating during a period in which the Veteran is gainfully employed and the Veteran has not submitted a VA Form 21-8940 to indicate otherwise. Because the Veteran was employed during the period on appeal, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Therefore, the claim of entitlement to TDIU must be denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, 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.