Citation Nr: 21025281 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-22 131 DATE: April 27, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for residuals of left ruptured Achilles tendon disability (left ankle disability) is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for left knee strain with osteoarthropathy and patellar chondromalacia (left knee disability) is remanded. Entitlement to an evaluation in excess of 10 percent for right knee strain with osteoarthropathy and patellar chondromalacia (right knee disability) is remanded. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s left ankle disability has been manifested by pain, swelling, and moderate limitation of motion, and does not more closely approximate marked limitation, plantar flexion less than 10 degrees, or in dorsiflexion less than 5 degrees. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for residuals of left ruptured Achilles tendon disability 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 Codes 5024-5271 (2020) and (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from April 1982 to March 1992. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. 1. Entitlement to an evaluation in excess of 10 percent for residuals of left ruptured Achilles tendon disability (left ankle disability) The Veteran seeks a higher rating for his left ankle disability. He contends that his current assigned ratings do not adequately reflect the severity of his left ankle symptomatology during flare-up episodes. See Appellate Brief (February 2021). The Veteran complains of constant aching, swelling, and stiffness in his left ankle, and his symptomatology interferes with his ability participate in normal activities with my family and causes him to miss days from work due to excessive pain. He reports flare-ups of severe symptomatology with sitting, walking, getting in and out of vehicle, and climbing. See C&P Exam (August 2020). The Veteran’s left ankle disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5271. The primary Diagnostic Code 5024 represents the underlying source of the disability, while the additional Diagnostic Code 5271 (limited motion of ankle) after the hyphen represents the basis for the rating. 38 C.F.R. § 4.27. The Board concludes that the preponderance of the evidence is against a rating in excess of 10 for left ankle disability at any point during the pendency of the appeal. 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). As such, 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, Diagnostic Code 5271 provides a 10 percent rating for moderate limited motion of the ankle, and a maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). As of February 7, 2021, under the amended criteria, Diagnostic Code 5271 provides a 10 percent rating is warranted for moderate limitation of ankle motion less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and marked limitation of ankle motion less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (February 2021); 85 Fed. Reg. 230, at 76464. The terms “moderate,” and “marked” are not defined in the Rating Schedule, but the Rating Schedule does show that for the ankle the normal range of plantar flexion is from 0 to 45 degrees, and the normal range of dorsiflexion is from 0 to 20 degrees. 38 C.F.R. § 4.71a, Plate II. 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). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left ankle disability. In this regard, the Veteran’s limitation of motion in his left ankle has not more closely approximated marked limitation of motion at any point during the period under appeal, or more closely approximated plantar flexion less than 10 degrees or dorsiflexion less than 5 degrees since February 7, 2021. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271 (2020) and (2021). A June 2011 VA examination report shows the Veteran described daily flare-ups of ankle pain at a level 10 which was precipitated by activity and he reported functional loss due to difficulty with prolonged walking and standing due to ankle pain. However, clinical evaluation revealed he had full range of motion in his left ankle and there was no additional limitation after repetitive use. There was objective evidence of tenderness, but no edema, instability, abnormal movement, effusions, weakness, deformity, guarding, malalignment, or ankylosis was observed on clinical examination. Ultimately, despite the Veteran’s subjective reports, he retained full range of motion in his left ankle without additional limitation after repetitive use. Such symptomatology does not demonstrate more than moderate limitation of motion under the criteria for Diagnostic Code 5271. See 38 C.F.R. § 4.71a (2020). VA treatment records show the Veteran complained of pain, swelling, stiffness, and instability in his left ankle, and he was prescribed a left ankle brace to treat his instability. See CAPRI (June 2019). However, these VA treatment records do not contain the results from range of motion testing or findings which are indicative of more than moderate symptomatology in the left ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2020). The Board has considered that in a May 2017 private treatment record, it was noted that the Veteran had “severely decreased” range of motion on dorsiflexion in left ankle; however, the record does not describe the results of any specific range of motion testing for the left ankle or explain how it determined such was characterization. See Medical Treatment Record - Non-Government Facility (December 2019). Moreover, the August 2020 VA examination reflects at worst left ankle limitation to 10 degrees on dorsiflexion and limitation to 15 degrees on plantar flexion as a result of pain during periods of flare-ups. Notably, the Veteran has retained half of his range of dorsiflexion motion and a third of his range of plantar flexion motion in his left ankle, despite functional loss as result of pain during periods of flare-ups as considered by the VA examiner. To the extent that there was pain noted on examination, it was without associated functional impairment and there was no pain on weightbearing. Also, to the extent that there was crepitus of the left ankle joint on testing, there are no complaints or findings that his causes any functional impairment. As such, the Board finds that the Veteran’s left ankle disability does not more closely approximate “marked” limitation of motion under the old criteria nor more closely approximate plantar flexion less than 10 degrees or dorsiflexion less than 5 degrees under the revised criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271 (2020) and (2021). The Veteran has complained of constant pain, swelling, and tenderness in his left ankle, and he has reported difficulty with prolonged walking and standing due to ankle pain. He noted that elevation, medication, and regular exercise helped with symptoms. Although the Veteran reported “severe” flare ups of left ankle symptoms, he denied any functional loss or impairment as result of flare-ups during the August 2020 VA examination. The Veteran does not describe any specific loss of use or function that could arguably support a finding of “mark” limitation of motion of the left ankle. Notably, muscle strength was normal and there was no muscle atrophy from disuse of his left ankle. The Board finds that the above competent evidence reflects that the Veteran’s left ankle symptomatology is more consistent with a finding of “moderate” limitation of motion, which does contemplate his functional loss associated with pain during flare-ups and repeated use overtime. Although ankle instability was suspected, the Veteran did not report curbing his daily activities. Rather, he informed the August 2020 VA examiner that engaging in exercise helps to alleviate his left ankle symptoms, and he did not identify any functional impact on his employment due to his ankle disability. Accordingly, even considering the Veteran’s lay reports of symptoms and functional loss, his reported left ankle disability would not result in symptoms more nearly approximating marked limited motion at any point during the pendency of the appeal, or more nearly approximate plantar flexion less than 10 degrees or dorsiflexion less than 5 degrees since the revision of the regulations. See 38 C.F.R. § 4.71a, Diagnostic Codes 5271 (2020) and (2021). The Board has considered whether a higher rating than assigned or a separate rating is warranted under any other potentially applicable provision. However, the Board finds that there is no basis for a higher or separate rating. There is no ankylosis, malunion of the joint with deformity, or astragalectomy. 38 C.F.R. § 4.71, Diagnostic Codes 5270-5274. The Board accepts that the Veteran was competent to report that his symptoms. The Board further accepts that the Veteran has functional impairment and pain. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms of marked ankle disability, plantar flexion less than 10 degrees, or dorsiflexion less than 5 degrees. As explained above, the Veteran’s complaints coupled with the medical findings do not reflect a disability picture that more nearly approximates marked ankle disability. Rather his symptoms, credibly reported in both the June 2011 and August 2020 VA examinations, are fully contemplated by the 10 percent rating assigned. There are no complaints or findings for weakness, fatigability, or incoordination. Finally, the Board acknowledges the general assertion of entitlement to extraschedular consideration raised by the Veteran’s representative. See Appellate Brief (June 2017). In addition, the Board notes the Veteran reported that flare-ups of his left ankle pain can impact his ability to sleep, drive a vehicle, work, and interact with his family. See NOD (notice of disagreement) (October 2012). To the extent the Veteran and his representative assert such entitlement, consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the Veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran’s left ankle disability is rated under Diagnostic Code 5271. The record shows that he has complaints and findings of limitation of motion, pain, swelling, and instability. The types of signs and symptoms contemplated by the schedular criteria for musculoskeletal disabilities include functional loss, which may be manifested by decreased or abnormal excursion, strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011). As noted above, the finding of instability has not result in additional impairment beyond limitation of motion contemplated under Diagnostic Code 5271. While the Board acknowledges that sleep disturbances are not contemplated by rating criteria for musculoskeletal disabilities, the Veteran’s reported sleep problem is due to left ankle pain. Pain and its effects are considered as part of the schedular rating criteria for musculoskeletal disabilities. See DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, here, the Veteran’s left ankle disability manifestations are reasonably contemplated by the assigned diagnostic codes. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. 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 ankle disability. 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. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for left knee disability is remanded. 2. Entitlement to an evaluation in excess of 10 percent for right knee disability is remanded. The Veteran seeks higher ratings for his right knee and left knee disabilities. He contends that his current assigned ratings do not adequately reflect the severity of his bilateral knee symptomatology during flare-up episodes. See Appellate Brief (February 2021). To ensure that VA has met its duty to assist the Veteran, the Board finds that a remand is needed to afford the Veteran with a new VA examination to evaluate the severity of his bilateral knee disabilities in accordance with the new applicable rating criteria. See 38 C.F.R. § 3.159 (c); Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). VA recently revised the regulations governing the musculoskeletal system, effective from February 7, 2020. 85 Fed. Reg. 230 (November 30, 2020). The revisions included substantive changes to Diagnostic Code 5257 concerning instability and subluxation in the knee, where the previous subjective terms of “slight”, “moderate”, and “severe” were amended to detailed types of instability resulting in specific types of impairments. 85 Fed. Reg. 230, 76463. The revised Diagnostic Code 5257 provides that a for recurrent subluxation or lateral instability, a 30 percent rating requires “unrepaired or failed repair of complete ligament tear causing persistent instability” and that a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating requires (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability. Both require a prescribed assistive device or bracing for ambulation. A 10 percent rating for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. See 38 C.F.R. § 4.71a, Diagnostic Code 5271 (February 2021); 85 Fed. Reg. 230, 76463. In addition, the revision to Diagnostic Code 5257 added rating criteria for patellar instability and provides a 30 percent rating requires “a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker.” A 20 percent rating requires a diagnosed condition with one of either a brace, cane, or walker. A 10 percent rating requires a diagnosed condition that does not require a prescription from a medical provider for a brace, cane, or walker. See Id. The Veteran was most recently afforded a VA knee examination in August 2020. In that examination report, the VA examiner recorded objective findings of slight recurrent subluxation and lateral instability in both of the Veteran’s knees. Unfortunately, the August 2020 examination report does not contain sufficient information for adjudicating the Veteran’s bilateral knee disabilities under the new rating criteria. Because the record does not contain sufficient evidence to rate the Veteran’s disability under the new rating criteria, a new examination is warranted. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.