Citation Nr: 21040376 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-08 694 DATE: July 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for a right ankle disability is denied. Entitlement to an evaluation in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran's right ankle disability is manifest by dorsiflexion of 10 degrees and plantar flexion of 15 degrees. 2. The Veteran's right knee disability is manifest by flexion of 0 to 90 degrees and extension of 90 to 0 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right ankle 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 Code 5271. 2. The criteria for a rating in excess of 10 percent for a right knee 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 5003-5260-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1978 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held in March 2020; a transcript of the hearing has been associated with the claims file. The Veteran's claims were previously remanded by the Board in an April 2020 decision. The Board finds that the RO has substantially complied with the April 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that a June 2021 rating decision granted service connection for right lower extremity radiculopathy with a 20 percent evaluation effective May 14, 2021 and granted an increased rating of 20 percent for a lumbar spine disability effective May 14, 2021. The Veteran's combined disability rating has been 100 percent from May 29, 2018. Increased Rating 1. Entitlement to an evaluation in excess of 10 percent for a right ankle disability The Veteran contends that he is entitled to a higher rating because his right ankle condition has worsened since his 2014 VA examination The Veteran's status post peroneal tendon groove deepening, with arthritic changes, right ankle (right ankle disability) is 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 and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. For the period prior to February 7, 2021, VA's M21-1 Adjudication Procedures Manual, gave as an example of moderate limitation of ankle motion as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion, while an example of marked limitation is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. The VA Adjudication Procedures Manual (M21-1) is not binding on the Board. However, the Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board notes that identical limitations have been codified effective February 7, 2021 as Diagnostic Code 5271. 38 C.F.R. § 4.71a. As discussed below, the Veteran's right ankle had dorsiflexion of 10 degrees and plantar flexion of 20 degrees, thus, limitation of motion was moderate under either standard. 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). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was afforded a VA examination in June 2014. The Veteran reported severe pain 3 to 4 times weekly lasting a day. On initial range of motion examination, the Veteran had dorsiflexion of 10 degrees and plantar flexion of 15 degrees with objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions with no additional limitation in range of motion. The examiner did note functional loss in the ankle due to less movement than normal and pain on movement. The examiner noted localized tenderness or pain on palpation on the right ankle. The examination also showed full muscle strength; no joint instability; and no ankylosis. The examiner noted the Veteran had undergone surgery on his ankle in 2000. The Veteran reported regular use of a brace. The Veteran also indicated that his ankle disability causes him to walk slower at work. At the March 2020 Board hearing, the Veteran testified that he experiences ongoing pain, stiffness, and a lack of flexibility in his right ankle. He further indicated that he hears popping sounds when he walks. The Veteran also testified that his right ankle condition interferes with his ability to perform his daily duties at work. In August 2020, the Veteran was afforded an updated VA examination. The examiner noted a diagnosis of status post peroneal tendon groove deepening with arthritic changes of the right ankle. The Veteran reported his condition had progressed or worsened with constant, sharp, 3 out of 10 pain, limping, and use of an ankle brace. The Veteran also reported that his pain increases to a 7 out of 10 from both long periods of inactivity and prolonged walking. The Veteran reported the pain lasts 30 minutes to 1 hour three to four times a week and is relieved with rest and medication. The examiner also indicated the Veteran is unable to stand or walk for long periods of time. On initial range of motion testing, the Veteran had 10 degrees of dorsiflexion and 20 degrees of plantar flexion. The examiner noted that the abnormal range of motion contributed to a functional loss causing difficulty with prolonged walking, standing, and using stairs. The examiner also noted pain on both dorsiflexion and plantar flexion, but no localized tenderness or pain on palpation. The examiner also noted no evidence of pain with weight bearing or objective evidence of crepitus. There was no additional functional loss after three repetitions. The examiner noted the Veteran's statements describing functional loss with repetitive use over time and during flare-ups were medically consistent with the examination. The examiner indicated there was no additional functional loss during flare-ups. The examiner indicated the Veteran had additional factors contributing to disability in his right ankle including less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. The examiner also noted difficulty with prolonged walking, standing, and using stairs due to decreased range of motion. The Veteran had full muscle strength, no atrophy, no ankylosis, and no joint instability bilaterally. The examiner noted continued constant use of a brace. The examiner also noted that passive range of motion was the same as active range of motion and there was objective evidence of pain when the right ankle is used in non-weightbearing. The examiner concluded that the Veteran's condition had worsened over time. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right ankle disability because dorsiflexion measured no less than 10 degrees and plantar flexion measured no less than 15 degrees. Thus, these measurements did not meet the criteria corresponding to a higher 20 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and difficulty with prolonged walking, standing, and using stairs. However even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he had flare-ups with pain of 7 out of 10 lasting 30 minutes to an hour 3 to 4 times a week would not result in symptoms more nearly approximating marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) 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. There is no indication that the Veteran's ankle demonstrates any ankylosis or has a malunion. 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 a right 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. Entitlement to an evaluation in excess of 10 percent for a right knee disability The Veteran contends that he is entitled to a 20 percent rating because he believes there was further arthritic deterioration of his right knee. Additionally, the Veteran contends that his condition has worsened since the 2014 VA examination. The assigned Diagnostic Code 5260 suggests that the right knee disability is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the right knee sprain (also claimed as right knee condition and chondromalacia) has manifested as osteoarthritis and been rated based on painful noncompensable limitation of motion, and that the right knee sprain has 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 right knee disability 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 right knee disability to 5003 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. The Veteran's right knee condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. 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. 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). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In June 2014, the Veteran was afforded an examination for his right knee disability. The examiner noted a diagnosis of a right knee sprain with intermittent pain over the last 34 years increasing to constant pain for the prior 10 12 years. The Veteran reported flare-ups twice a month resulting in severe pain typically lasting about an hour. On initial range of motion testing, the Veteran had 100 degrees of flexion and normal extension with no objective evidence of painful motion. The Veteran had no additional loss of motion or functional loss with repetitive motion testing. The examiner indicated the Veteran had functional loss due to less movement than normal and pain on movement on the right. The examiner also noted tenderness or pain to palpation on the right. The Veteran had full (5/5) muscle strength, no evidence of joint instability, no history or evidence of recurrent patellar subluxation or dislocation, and no history of a meniscal condition. The examiner noted no surgeries to the right knee, but indicated the Veteran regularly used a brace on his right knee. At the March 2020 hearing, the Veteran reported that he has been diagnosed with an arthritic knee condition. The Veteran further indicated that he has fallen forward due to his knee giving away and has limited range of motion and swelling in the knee. In August 2020, the Veteran was afforded an updated VA examination for his right knee. The examiner noted a history of a right knee sprain. The Veteran reported his condition had worsened, and that he was prescribed pain medication for his right knee disability. The Veteran reported flare-ups from prolonged walking that increase pain to 5 out of 10 two to three times a week lasting for 30 minutes to an hour and relieved with rest and medication. The Veteran further reported he's unable to walk or stand for long periods of time. On initial range of motion testing, the Veteran had flexion (0 to 140) of 0 to 110 degrees and extension (140 to 0) of 110 to 0 degrees. The examiner noted the Veteran would have difficulty with prolonged walking, standing, and using stairs due to the decrease in range of motion. The examiner indicated that pain, weakness, fatigability, and incoordination would not significantly limit functional ability with repeated use over time. Range of motion decreased to 0 to 100 degrees of flexion and 100 to 0 degrees of extension after three repetitions. The examiner indicated that the Veteran's range of motion would decrease to 0 to 90 degrees of flexion and 90 to 0 degrees of extension during a flare-up. The examiner noted additional functional loss due to less movement due to chronic pain, disturbance of locomotion, and interference with sitting, standing, and using stairs. Muscle strength testing was normal with no evidence of muscle atrophy. There was no evidence of ankylosis or joint instability on examination. The examiner noted no history of meniscal conditions or surgical procedures on the knee. The examiner concluded the Veteran's symptoms had worsened. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right knee disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and pain during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has flare-ups resulting in 5 out of 10 pain 2 to 3 times a week lasting 30 minutes to an hour would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. As noted above, the August 2020 VA examiner indicated the Veteran would have 90 degrees of flexion during a flare-up. 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). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for a right knee 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. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.