Citation Nr: 1736688	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-11 532	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Whether new and material evidence has been submitted that is sufficient to reopen a claim of entitlement to service connection for degenerative joint disease of the right and left knees.

2.  Entitlement to service connection for a right shoulder disability, to include rotator cuff tendonitis, degenerative joint disease, and muscle atrophy.

3.  Entitlement to a disability rating in excess of 10 percent for a right knee strain.

4.  Entitlement to a disability rating in excess of 10 percent for a left knee strain.

5.  Entitlement to a disability rating in excess of 20 percent for a right ankle strain with degenerative joint disease.


REPRESENTATION

Veteran represented by:	The American Legion
WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran served on active duty from August 1986 to August 1989. 

These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The Lincoln, Nebraska RO currently has jurisdiction. 

In July 2014, the Board remanded the case for a hearing before the Board, which took place in January 2015.  A copy of the hearing transcript is associated with the evidence of record. 

In July 2015, the Board again remanded these matters for additional development.

In a January 2017 rating decision, the RO granted an increased rating for the Veteran's right ankle strain with degenerative joint disease disability from 10 percent to 20 percent disabling, effective June 13, 2006.  However, as the increase did not represent a total grant of benefits sought on appeal, the claim for a rating in excess of 20 percent for a right ankle strain with degenerative joint disease disability remains before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).

The issues of entitlement to service connection for an acquired psychiatric disorder as secondary to service-connected disabilities and entitlement to service connection for gout, as secondary to the service-connected right ankle disability have been raised by the record in a March 2008 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016). 

The issues of whether new and material evidence has been submitted that is sufficient to reopen a claim of entitlement to service connection for degenerative joint disease of the right and left knees and entitlement to service connection for a right shoulder disability, to include rotator cuff tendonitis, degenerative joint disease, and muscle atrophy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's right knee disorder is not manifested by objective evidence of flexion limited to 30 degrees or less; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; or impairment of the tibia or fibula.

2.  The Veteran's left knee disorder is not manifested by objective evidence of flexion limited to 30 degrees or less; extension limited to 15 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; or impairment of the tibia or fibula.

3.  The Veteran's right ankle disability is manifested by pain and marked limitation of motion, without ankylosis.





CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent for a right knee disability are not met.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2016).

2.  The criteria for an evaluation in excess of 10 percent for a left knee disability are not met.  38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261 (2016).

3.  The criteria for an evaluation in excess of 20 percent for a right ankle disability are not met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a).  

The RO provided notice to the Veteran in a March 2007 letter.  

The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal.  Pertinent medical evidence associated with the claims file consists of service, private, and VA treatment records.  The record also contains the report of an August 2007 VA examination.  

Per the July 2015 Board remand instructions, the Veteran also underwent VA examinations in January 2016.  

The Board also notes that in its most recent remand in July 2015, the RO was instructed to make attempts to obtain treatment records from the Carle Clinic in Champaign-Urbana, Illinois, since June 2007.  Per the remand instructions, the Appeals Management Center (AMC) sent the Veteran a letter in October 2015 which provided authorizations from the Carle Clinic in order for the AMC to obtain the treatment information.   The Veteran signed these authorizations.

However, the Carle Clinic informed VA that it required an additional form that needed to be signed.  Accordingly, in a June 2016 correspondence, VA informed the Veteran that an additional form needed to be submitted to the Carle Clinic in order for the AMC to obtain the treatment information.   

However, the Board observes that the Veteran did not respond to the June 2016 correspondence and thus did not complete the additional authorization to obtain the private medical records from the Carle Clinic.  

In light of the above, the Board finds that the RO substantially complied with the July 2015 remand directives, to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with).  The Board has reached this conclusion because the record shows that in June 2016 the RO/AMC asked the Veteran to provide it with an additional authorization to obtain these records and despite the foregoing he did not provide VA with the additional authorization to request them.  See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) (holding that "the duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the purtative evidence.").

Thus, all records identified by the Veteran as relating to the claims have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claims.  VA has fulfilled its duty to assist.


Laws and Regulations

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2016).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2016).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2016). 

The Veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1 (2016).  Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  See also Hart v. Mansfield, 21 Vet. App. 505 (2008).

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 (2016).

In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  He is also competent to report symptoms of right knee, left knee and right ankle disabilities.  Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  The Veteran is competent to describe his symptoms and their effects on employment or daily activities.  

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 excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement.  38 C.F.R. § 4.45.

The intent of the 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.  See 38 C.F.R. § 4.59.  Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011).

In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

Although pain may cause functional loss, pain 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, 38-43 (2011) (quoting 38 C.F.R. § 4.40).

The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Correia v. McDonald, 28 Vet. App. 158 (2016).

The plain language of § 4.59 indicates that the regulation is not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements.  Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).  The Court held that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements.  Southall-Norman v. McDonald, 28 Vet. App. at 354.

I.  Left and Right Knees

The Veteran is currently assigned 10 percent disability ratings for right and left knee disabilities under Diagnostic Code 5260.  
The Board parenthetically notes that the Veteran is also service connected for loss of extension of his right knee at a 20 percent disability rating under Diagnostic Code 5261.  This evaluation is not currently under appeal.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order.  If flexion of the knee is limited to 30 degrees a 20 percent rating is in order.  If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order.  If extension of the knee is limited to 15 degrees a 20 percent rating is in order.  If extension of the knee is limited to 20 degrees a 30 percent rating is in order. 

Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability.  A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  A 30 percent rating is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2016). 

The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6 (2016).  The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2016).

Under Diagnostic Code 5258, a 20 percent rating is warranted for a dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258.  Where there is symptomatic removal of semilunar cartilage, a 10 percent rating is warranted under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5259.

VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria.  VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004).  The basis for the opinion was a finding that a limitation in planes of movement were each compensable.  Id.  

The Board notes that 38 C.F.R. § 4.71a , Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis that is established by X-rays: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion.  Generally, when documented by X-rays, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion.  Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by X-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion.  Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991).  As noted, the Court in Burton further held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.

A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2016).  VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994).  However, a separate rating must be based on additional compensable disability.

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II.

Factual Background and Analysis

The Veteran filed a claim for increased ratings for his service-connected right and left knee disabilities which was received by VA in June 2006.

The Veteran underwent a VA examination in August 2007.  The Veteran reported having constant, daily pain and weakness in the knees.  He also reported stiffness, swelling and redness as well as instability, locking, fatigability and lack of endurance.  He had flare-ups twice a day where the pain lasted for 3 to 5 minutes.  The precipitating factor in the flare-ups was walking a prolonged period of time.  During flare-ups, he did not have any limitation of motion or functional impairment but rather was just in a lot of pain.  He wore braces on both knees.  His daily activities were impacted as he said that he did not exercise as much as he had liked and it was difficult to put his socks and shoes on.  He worked at the prosthetics department at VA and reported having to take several days off from work last year mostly due to his migraine headaches.  

On examination, his gait and stance were normal.  There was no edema and no effusion.  The Veteran complained of pain all around the knee but there was no crepitus noted.  Active flexion in the right knee was from 0 to 90 degrees with pain at 90 degrees.  Passive flexion was from 0 to 126 degrees with pain at 126 degrees.  Extension was 0 degrees both passively and actively.  With repeated range of motion, the Veteran complained of pain and fatigue with pain the more prominent component.  However, with repeated range of motion of the right knee, the Veteran did not have any additional loss in degrees of motion or functional impairment due to pain, pain on repeated use, weakness, incoordination or lack of endurance.  Active flexion in the left knee was from 0 to 109 degrees with pain at 109 degrees.  Passive flexion was from 0 to 123 degrees with pain at 123 degrees.  With repeated range of motion, the Veteran complained of pain and fatigue with fatigue the more prominent component in the left knee.  However, with repeated range of motion of the left knee, the Veteran did not have any additional loss in degrees of motion or functional impairment due to pain, pain on repeated use, weakness, incoordination or lack of endurance.  X-rays of the right and left knees were normal.  The diagnosis was left and right knee strains.
Per the July 2015 Board remand instructions, the Veteran underwent a VA examination in January 2016.  The Veteran reported flare-ups of knee pain as he indicated that if he was sitting or driving too long he had to get out about every hour and stretch.  He described limitations in squatting, bending and driving.  He reported that he was unable to run because of pain.  On examination, right knee flexion was from 5 to 100 degrees and extension was from 100 to 5 degrees.  Pain was noted on examination that caused functional loss.  There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation as he had moderate pain on palpation of the patellar and quadriceps tendons and medial joint as well as mild pain on palpation of the lateral knee joint.  There was objective evidence of crepitus.  After 3 repetitions there was additional loss as flexion was from 15 to 100 degrees and extension was from 100 to 15 degrees.  

On examination of the left knee, flexion was from 5 to 100 degrees and extension was from 100 to 5 degrees but the abnormal range of motion itself did not contribute to functional loss.  There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation as he had moderate pain on palpation of the patellar and quadriceps tendons, medial joint and lateral knee joint.  There was objective evidence of crepitus.  The left knee did not have additional functional loss or range of motion after 3 repetitions.  The examiner was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up.  There was no reduction in muscle strength or muscle atrophy.  There was no ankylosis and no instability.  There was a history of joint effusion as the Veteran reported swelling all of the time that worsened with increased activity.  The examiner noted that the Veteran was not examined during a flare-up or after repeated use over a period of time.  As a result, it was impossible to determine whether or not pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups or after repeated use over a period of time.  The Veteran regularly used a brace.  No arthritis was documented.  The Veteran's left and right knee disabilities impacted his ability to perform an occupational task as he would have trouble with walking, running, jumping, squatting, climbing, balancing and crawling.
Following a review of the evidence and the Veteran's contentions, the Board finds that symptomatology and findings associated with the Veteran's right and left knee disabilities do not warrant disability ratings in excess of 10 percent.  

The Veteran notably did not demonstrate flexion limited to 30 degrees or extension limited to 15 degrees in his left knee to warrant a rating in excess of 10 percent under Diagnostic Codes 5260 or 5261.  

The Veteran also did not demonstrate flexion limited to 30 degrees in his right knee to warrant a rating in excess of 10 percent under Diagnostic Code 5260.  As noted above, the Veteran is also service connected for loss of extension of his right knee at a 20 percent disability rating under Diagnostic Code 5261.  Although this evaluation is not currently under appeal, the Board observes that the assigned 20 percent rating is correct as the Veteran's right knee extension was limited to 15 degrees after repetitive use.

A review of the VA treatment records, including the results from the Veteran's VA examinations, show that knee pain range of motion was, at its worst, 0 to 90 degrees on the right on VA examination in August 2007 and 5 to 100 degrees for the left knee on VA examination in January 2016.

Therefore, because left and right knee flexion is not limited to 30 degrees or less and left knee extension is not limited to 15 degrees or more, an increased rating is not warranted based on objective clinical findings showing decreased range of motion.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.  

The Board again acknowledges that the Veteran has pain, weakened movement and less movement than normal.  This is well documented in the lay and medical evidence.  The Board further finds that the Veteran's own reports of symptomatology to be credible.  However, neither the lay nor medical evidence reflects the functional equivalent of impairment required for evaluations in excess of 10 percent.  Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board does not find that the Veteran's functional losses equate to the criteria required for a 20 percent or greater rating under either 38 C.F.R. § 4.71a, Diagnostic Code 5260 or Diagnostic Code 5261, or a separate compensable rating for the left knee under these same Diagnostic Codes.  38 C.F.R. §§ 4.2, 4.3, 4.7, 4.45, 4.71a; DeLuca. 

Additionally, while the Veteran reported that he had instability of his left knee, there is no showing of instability as the August 2007 and January 2016 VA examination reports showed no instability, even upon specific instability testing.  As the medical findings showed no laxity and no objective evidence of subluxation, the Board concludes that a separate disability rating under Diagnostic Code 5257 is not warranted for the knees.

The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a left or right knee disability.  However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum.  Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263.  

The record reflects the Veteran has a history of meniscus tear, so the Board also considered application of Diagnostic Codes 5258 and 5259.  These codes apply to the symptomatic residuals of the removal of the meniscus (5259), and the symptoms applicable to a dislocated meniscus, with frequent episodes of locking, pain, and effusion into the joints (5258).  While the evidence does demonstrate pain and effusion, the Veteran has consistently denied a history of locking during his VA examinations.  Therefore the Board concludes that the criteria for a 20 percent rating under Diagnostic Code 5258 are not met.  Furthermore, the Veteran is already being compensated for painful movement, separate compensation under Diagnostic Code 5259 would be impermissible pyramiding.

Accordingly, as the preponderance of the evidence is against the claims for ratings in excess of 10 percent for service-connected right and left knee disabilities, the benefit-of-the-doubt rule does not apply, and the claims must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

II.  Right Ankle

The Veteran filed a claim for an increased rating for his service-connected right ankle disability which was received by VA in June 2006.

The Veteran is currently assigned a 20 percent disability rating for his right ankle disability under Diagnostic Code 5271.  

Limitation of motion of the ankle is rated under Diagnostic Codes 5270 and 5271.  Normal ranges of motion of the ankle are dorsiflexion from zero degrees to 20 degrees, and plantar flexion from zero degrees to 45 degrees.  38 C.F.R. § 4.71a, Plate II.

Diagnostic Code 5270 provides ratings for ankylosis of the ankle.  Ankylosis of the ankle in planter flexion less than 30 degrees is to be rated 20 percent disabling; ankylosis of the ankle in planter flexion between 30 degrees and 40 degrees, or in dorsiflexion between zero degrees and 10 degrees, is to be rated 30 percent disabling; ankylosis of the ankle in planter flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity, is to be rated 40 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5271 provides ratings based on limitation of extension of the ankle.  Moderate limitation of motion of the ankle is rated as 10 percent disabling; and marked limitation of motion of the ankle is rated as 20 percent disabling.  Id.

The Veteran underwent a VA examination in August 2007.  The Veteran reported constant, daily complaints of pain in his right ankle.  There was weakness, stiffness, redness, swelling, heat, instability, fatigability and lack of endurance.  He denied locking.  He had flare-ups 2 to 3 times a day which lasted 10 to 15 minutes.  The alleviating factor was resting.  During flare-ups, he had a difficult time walking and could not play sports.  He wore an air cast and compression stockings.  It impacted his daily activities as he said that he did not exercise as much as he had liked and it was difficult to put his socks and shoes on.  On examination, his gait and stance were normal.  There was no erythema or effusion.  The Veteran complained of pain with palpation on the lateral malleolus.  

The examiner noted that active and passive range of motion of the right ankle was similar.  Dorsiflexion was from 0 to 16 degrees with pain at 16 degrees.  Plantar flexion was from 0 to 8 degrees with pain at 8 degrees.  Inversion was from 0 to 10 degrees with pain at 10 degrees.  Eversion was from 0 to 5 degrees with pain at 5 degrees.  With repeated range of motion of the right ankle there was pain.  However, with repeated range of motion of the right ankle, the Veteran did not have any loss in degrees of motion or functional impairment due to pain, pain on repeated use, weakness, incoordination or lack of endurance.  The diagnosis was a right ankle strain and the examiner noted that bone ossicles involving both medial and lateral malleolus on x-rays may be related to old healed fractures.

Per the July 2015 Board remand instructions, the Veteran underwent a VA examination in January 2016.  The Veteran reported experiencing constant ongoing pain in the right ankle.  He reported having flare-ups as he had swelling whenever he walked excessively.  He reported experiencing functional impairment as he could not run and could not jump.  On examination, dorsiflexion was from 0 to 5 degrees and plantar flexion was from 0 to 50 degrees.  The abnormal range of motion however did not contribute to functional loss.  The pain on the examination caused the functional loss.  There was evidence of pain with weight bearing and objective evidence of localized tenderness or pain on palpation of the joint or associated tissue.  He had moderate pain on palpation at just below the inner and outer malleolus.  There was no objective evidence of crepitus.  There was additional loss of range of motion after 3 repetitions as dorsiflexion was from 0 to 0 degrees and plantar flexion was from 0 to 50 degrees.  The examiner was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during a flare-up.  There was no reduction in muscle strength, no muscle atrophy and no ankylosis.  The Veteran did not use any assistive devices.  The Veteran's right ankle disability impacted ability to perform an occupational task as he would have trouble with walking, running, jumping, squatting, climbing, balancing and crawling.
Following a review of the evidence and the Veteran's contentions, the Board finds that symptomatology and findings associated with the Veteran's right ankle disability do not warrant a disability rating in excess of 20 percent.  According to 38 C.F.R. § 4.71a, Diagnostic Code 5271, the maximum schedular evaluation available for limited motion of the ankle is a 20 percent evaluation.  As noted, the Veteran's right ankle disability has been awarded this maximum 20 percent evaluation for the period under appeal.

The only diagnostic codes (Diagnostic Codes 5270 and 5272) for ankle disorders that offers a potentially higher rating than the Veteran's current 20 percent rating is for ankylosis of the ankle.  However, while VA examination reports indicate that the Veteran's right ankle ranges of motion are reduced, his ankle is not ankylosed. 

The Board has also considered whether an increased or additional disability rating may be assigned for the Veteran's right ankle disability under alternative diagnostic codes pertaining to disability of the ankle. 

Diagnostic Code 5273 pertains to malunion of os calcis or astragalus, which has not been shown at any time during the appeal.  Finally, as there is no evidence that the Veteran's right talus bone has been removed, Diagnostic Code 5274 for astragalectomy is not applicable.  Thus, the Veteran is not entitled to an increased or additional rating under Diagnostic Codes 5003, 5010, 5270, 5272, 5273, or 5274.

Again, the Board notes that a rating in excess of 20 percent requires ankylosis of the ankle.  Such impairment was simply not documented as the Veteran did not have any type of ankylosis, including in consideration of functional loss due to pain on motion, weakness and fatigability.

Since the Veteran's right ankle is not ankylosed as he has demonstrated the ability to flex, the criteria for an increased 30 percent evaluation have not been met.  Thus, the Board finds that the current 20 percent evaluation adequately portrays any functional impairment, pain, and weakness that the Veteran experiences as a consequence of use of his right ankle disability.

Based on the foregoing, the Board concludes that the criteria for a rating in excess of 20 percent are not met at any time during the appeal.  Accordingly, the preponderance of the evidence weighs against assignment of a higher disability evaluation.  See 38 U.S.C.A. § 5107(a) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to a disability rating in excess of 10 percent for right knee strain is denied.

Entitlement to a disability rating in excess of 10 percent for left knee strain is denied.

Entitlement to a disability rating in excess of 20 percent for right ankle strain with degenerative joint disease is denied.


REMAND

Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claims for whether new and material evidence has been submitted that is sufficient to reopen a claim of entitlement to service connection for degenerative joint disease of the right and left knees and entitlement to service connection for a right shoulder disability, to include rotator cuff tendonitis, degenerative joint disease, and muscle atrophy.

The Board notes that multiple rating decisions contain references to the Veteran's service treatment records.  However, in the Board's present review, the file does not contain his service treatment records.  Notably, on VA examination in January 2016, the VA examiner also specifically indicated that no service treatment records were found.

VA's duty to assist includes making attempts to obtain relevant records from Federal departments or agencies, including military records.  As a result, the AOJ should attempt to obtain any outstanding service treatment records that have not been associated with the Veteran's claims file.  See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2).

Accordingly, the case is REMANDED for the following action:

1.  Undertake all necessary efforts to obtain the Veteran's service treatment records and associate those records with his claims file.  Efforts to obtain these records should be documented in the record. 

2.  After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations.  If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).








	(CONTINUED ON NEXT PAGE)
These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).





______________________________________________
S. HENEKS
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

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