Citation Nr: 1743983	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  12-20 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia patella with degenerative joint disease (left knee disability). 

2.  Entitlement to a rating in excess of 10 percent prior to May 28, 2010, for service-connected degenerative joint disease of the right knee (right knee disability).

3.  Entitlement to a rating in excess of 30 percent from June 1, 2012, for service-connected right total knee arthroplasty (TKA).

4.  Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease of the lumbar spine with scoliosis (low back disability).

5.  Entitlement to a rating in excess of 20 percent for service-connected left shoulder sprain with osteoarthritis of the acromioclavicular joint (left shoulder disability).

6.  Entitlement to a rating in excess of 10 percent for service-connected residuals of a left ankle/foot injury. 


7.  Entitlement to a compensable rating prior to March 1, 2017, and to a rating in excess of 10 percent from March 1, 2017, for service-connected residuals of a right ankle/foot injury (right ankle disability).

8.  Entitlement to a rating in excess of 20 percent prior to March 1, 2017, and in excess of 30 percent from March 1, 2017, for service-connected bilateral pes planus. 

9.  Entitlement to a compensable rating for service-connected hammer toe deformities of the left foot. 

10.  Entitlement to a compensable rating for service-connected hammer toe deformities of the right foot.

11.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 


ATTORNEY FOR THE BOARD

Jaime M. Porter, Associate Counsel


INTRODUCTION

The Veteran had active military service from September 1975 to September 1995.  

These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2010, July 2013, and October 2014, by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

The Veteran appealed the July 2013 rating decision that denied ratings in excess of 10 percent under Diagnostic Codes 5010-5271 for residuals of right and left ankle/foot injuries with pes planus and hammer toe deformities.  During the course of this appeal, in a March 2017 rating decision, the RO closed out the Veteran's ratings under Diagnostic Codes 5010-5271 and assigned separate Diagnostic Codes to each of the distinct disabilities encompassed by the earlier rating decision.  Specifically, the RO granted separate ratings for the following disabilities:  residuals of a left ankle/foot injury, rated as 10 percent disabling from September 8, 2011; residuals of a right ankle/foot injury, rated as noncompensable prior to March 1, 2017, and as 10 percent disabling from March 1, 2017; hammer toe deformities of the left foot, rated as noncompensable; hammer toe deformities of the right foot, rated as noncompensable; and bilateral pes planus, rated as 20 percent disabling prior to March 1, 2017, and as 30 percent disabling from March 1, 2017.   

In consideration of the March 2017 rating decision, the Board has recharacterized the issues on appeal as set forth on the title page.  Additionally, because the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  The Veteran was not awarded the maximum rating for his ankle/foot, hammer toe, or pes planus disabilities, therefore those issues remain in appellate status.  

The Veteran appealed the May 2010 rating decision that denied a rating in excess of 10 percent under Diagnostic Codes 5010-5260 for degenerative joint disease of the right knee.  During the course of this appeal, in a June 2012 statement of the case, the RO closed out the Veteran's prior rating for the right knee and provided increased ratings under Diagnostic Code 5055 for right total knee arthroplasty (TKA) with history of degenerative joint disease.  Specifically, the RO awarded a temporary total rating from May 28, 2010, to May 31, 2012, under 38 C.F.R. § 4.30 for a right TKA, and a 30 percent rating from June 1, 2012, for residuals of a right TKA.  In view of these circumstances, the Veteran's appeal of the rating for his right knee disability has been characterized as two distinct issues as set forth on the title page and is exclusive of the time period during which the Veteran received a 100 percent (total) rating.  Moreover, because the 10 percent rating prior to May 28, 2010, and the 30 percent rating assigned from June 1, 2012, are less than total, the increased rating claim remains in controversy as to those periods.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).      

A July 2010 rating decision denied the Veteran's claim of entitlement to a temporary total evaluation based on hospital treatment in excess of 21 days, for the period from June 20, 2010, to July 9, 2010.  In August 2010, the Veteran submitted a timely notice of disagreement as to this decision, and in June 2012, the RO issued a statement of the case in response.  However, there is no evidence in the record indicating that the Veteran perfected an appeal of the July 2010 rating decision as to this issue.  See 38 C.F.R. § 20.202 (2016).  Therefore, the issue of entitlement to a temporary total evaluation based on hospital treatment in excess of 21 days is not on appeal.

This case was previously remanded by the Board, in May 2016, for further development.  The RO performed the necessary development and is therefore in compliance with the May 2016 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

The issues of earlier effective dates for the evaluation of right knee degenerative joint disease (DJD) and the evaluation of left knee chondromalacia patella with DJD have been raised by the record in the Veteran's August 2010 notice of disagreement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016). 

The issues of entitlement to increased ratings for the Veteran's left shoulder disability and residuals of a left ankle/foot injury and to a TDIU are REMANDED to the AOJ.




FINDINGS OF FACT

1.  The Veteran's chondromalacia patella with degenerative joint disease of the left knee has been productive of limitation of flexion to no worse than 107 degrees; painful motion; and X-ray evidence of arthritis; and has not been productive of flexion limited to 30 degrees or less or extension limited to 15 degrees or more.  

2.  Prior to May 28, 2010, the Veteran's degenerative joint disease of the right knee was productive of limitation of flexion to no worse than 83 degrees; painful motion; and X-ray evidence of arthritis; and has not been productive of flexion limited to 30 degrees or less or extension limited to 15 degrees or more.  

3.  From March 15, 2010, and prior to May 28, 2010, the Veteran's degenerative joint disease of the right knee was productive of symptoms of slight instability.  

4.  Beginning June 1, 2012, the Veteran's right total knee arthroplasty has been manifested by chronic post-operative residuals consisting of severe painful motion and weakness.  

5.  The Veteran's low back disability is manifested by degenerative joint disease with scoliosis, flexion limited to no worse than 80 degrees, combined range of motion limited to no worse than 165 degrees, and painful motion.

6.  Prior to March 1, 2017, the Veteran's residuals of a right ankle/foot injury were manifested by less than moderate limitation of range of motion.

7.  Beginning March 1, 2017, the Veteran's residuals of a right ankle/foot injury are manifested by less than marked limitation of range of motion.

8.  Prior to March 1, 2017, the Veteran's pes planus was manifested by symptoms of pain on use of the left foot accentuated and pain on use and manipulation of both feet.

9.  From March 1, 2017, the Veteran's pes planus is manifested by pain on manipulation and use accentuated in both feet.

10.  The Veteran's left foot and right foot hammer toes have affected no more than three digits on each foot.


CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for chondromalacia patella with degenerative joint disease of the left knee have not been met.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2016).

2.  The criteria for a rating in excess of 10 percent prior to May 28, 2010, for degenerative joint disease of the right knee have not been met.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2016).

3.  The criteria for a separate rating of 10 percent, but not higher, for right knee instability have been met from March 15, 2010, to May 27, 2010.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5257 (2016).

4.  The criteria for a rating of 60 percent, but not higher, for right total knee arthroplasty, have been met as of June 1, 2012.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5055 (2016).  
  
5.  The criteria for a rating in excess of 10 percent for a low back disability have not been met.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237-5243 (2016).

6.  The criteria for a compensable disability rating for residuals of a right ankle/foot injury prior to March 1, 2017, have not been met.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2016).

7.  The criteria for a rating in excess of 10 percent for residuals of a right ankle/foot injury beginning March 1, 2017, have not been met.  38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5271 (2016).

8.  The criteria for a disability rating in excess of 20 percent prior to March 1, 2017, and in excess of 30 percent from March 1, 2017, for bilateral pes planus have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2016).

9.  The criteria for a compensable disability rating for hammer toe deformities of the left foot have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282 (2016).

10.  The criteria for a compensable disability rating for hammer toe deformities of the right foot have not been met.  38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Ratings for Knees

The Veteran's chondromalacia patella of the left knee with degenerative joint disease is currently rated as 10 percent disabling under Diagnostic Codes 5010-5260.  

The Veteran's right TKA with history of degenerative joint disease is rated as 10 percent disabling prior to May 28, 2010, under Diagnostic Codes 5010-5260, and as 30 percent disabling from June 1, 2012, under Diagnostic Code 5055.    

According to VA medical center (VAMC) records from June 2009, the Veteran had range of motion from 0 to 120 degrees bilaterally, with patellofemoral crepitus in both knees.  The Veteran had minimal effusion of the right knee and mild varus/valgus laxity of the right knee.  He had no anterior-posterior instability.  The Veteran reported swelling in his right knee with the knee occasionally giving way.  Although his pain was worse with ambulation, the Veteran also experienced pain while resting.  

In October 2009, the Veteran had a significant antalgic gait.  He had a valgus deformity of the right lower extremity, but no effusion or discomfort with patellar motion.  He had tenderness to palpation of the medial and lateral joint line, with active range of motion of the right knee from 5 to 90 degrees, with discomfort.  The Veteran's right knee was stable to varus/valgus and anterior/ posterior testing.  He reported that his right knee had become progressively worse and that he now had pain with both ambulation and rest in the medial and lateral aspects of the knee.    

VAMC notes from April 2010 reflect that the Veteran had full extension of the right knee, but flexion to only about 100 degrees.  He had mild mediolateral laxity, medial and lateral joint line tenderness, and crepitus with motion.  There was no effusion.  

On VA examination in April 2010, the Veteran was diagnosed with bilateral chondromalacia patella.  The Veteran reported symptoms of weakness, swelling, giving way, and pain.  In addition, he reported flare-ups precipitated by physical activity as often as one time per day, lasting for 24 hours, with a pain rating of 10/10.  During flare-ups, the Veteran experienced limitation of motion due to pain when bending, as well as difficulty standing and walking.  On examination, the Veteran exhibited abnormal tandem gait due to an antalgic right knee.  The Veteran wore a brace on his right knee for support.  Neither of the Veteran's knees showed signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, guarding of movement, ankylosis, or genu recurvatum and locking pain.  However, both knees exhibited crepitus.  

The Veteran's range of motion of the right knee was to 90 degrees on flexion and to 0 degrees on extension.  His range of motion of the left knee was to 130 degrees on flexion and to 0 degrees on extension.  There was no additional limitation of motion after repetitive use testing for either knee.  The Veteran's knees were not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use, and all stability tests were within normal limits for both knees.  The examiner concluded that the Veteran's conditions were moderately limiting due to pain and discomfort with prolonged walking and standing.  

In January 2012, the Veteran's orthopedist described the Veteran's right knee and lower extremity outcome as compromised due to his inability to stand for long periods of time without pain and to extend or flex his knee within typical functional limits.  In addition, the orthopedist opined that the Veteran would be unable to continue with his current employment due to his right knee limitations.  

In November 2012, the Veteran's right knee had minimal swelling without erythema or drainage.  Active range of motion was from 0 to 95 degrees, and passive range of motion was from 0 to 100 degrees.  The Veteran's knee was stable to varus/valgus strain.  He was described as doing well overall with regard to the right TKA, with some pain that was well-controlled with naproxen.    

In November 2013, the Veteran reported a one week increase in his baseline knee pain.  On physical examination, he had no effusion or erythema, was stable to varus/valgus strain, and had range of motion from 0 to 90 degrees.  His TKA hardware was noted to be in good alignment.  

An August 2014 MRI reflected moderate medial and patellofemoral osteo-arthritic appearing degenerative changes of the left knee, and he was referred to physical therapy.  In addition, the Veteran was noted to have continued chronic pain in his right knee.  

The Veteran had a physical therapy evaluation for his left knee in September 2014.  He rated his knee pain as 7/10 at worst and 5/10 at best.  He described the pain as aching.  This pain occurred at the joint line and continued all the way across.  The Veteran had left knee flexion to 118 degrees and extension to minus 5 degrees.  His strength was 4- on left knee flexion 3+ on left knee extension.  The Veteran was reported to walk with a slight limp with reduced stride length that had more of a shuffle pattern.  The Veteran had some mild crepitus with flexion and extension.  The Veteran was provided a knee brace for support.  

At a November 2014 appointment, the Veteran was noted to have no issues with his right TKA.  In August 2015, the Veteran reported bilateral knee pain rated 7/10.  He exhibited tenderness to palpation of the left knee.  At a November 2015 appointment, the Veteran was reported to have no issues with his right TKA, though he wore a hinged knee brace for stability.

In February 2016, the Veteran rated his left knee pain as 6/10, and in May 2016, he rated his pain as 2/10.  On examination in August 2016, the Veteran exhibited tenderness to palpation of the left knee.  His osteoarthritis was described as stable, and he was advised to continue wearing a left knee brace.  

In December 2016, the Veteran had adequate patellar mobility of the right knee and no effusion.  His active range of motion was from 0 to 90 degrees, and his knee was stable to varus/valgus strain.  The Veteran was advised to continue with activities as tolerated, but to follow-up if his pain worsened or he wanted to consider a revision TKA procedure.  However, the Veteran stated that he was not interested in any further right knee intervention.  It was noted that the lucency of the tibial base plate and femoral stem had been stable for over a year.  The Veteran continued to ambulate with a cane and wear a hinged knee brace for stability.  Otherwise, he reported no issues with his right knee.  

The Veteran was provided a VA knee examination in March 2017.  The Veteran described having "really bad pain" that prevented him from walking or standing for a long time.  The Veteran had right knee flexion from 0 to 83 degrees and extension from 83 to 0 degrees.  The examiner noted that the Veteran's abnormal range of motion contributed to functional loss by reducing his capacity for kneeling and squatting.  However, although the Veteran had pain on flexion, it did not contribute to functional loss.  He also exhibited pain with weight bearing and moderate pain on palpation of the anterior knee due to his knee replacement.  There was no additional loss of function or range of motion on repetitive-use testing.  The examiner was unable to determine without speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time.  Less movement than normal was an additional contributing factor of disability.  The Veteran was noted to have chronic residuals consisting of severe painful motion or weakness following his right total knee arthroplasty.  

The Veteran had left knee flexion from 0 to 107 degrees and extension from 107 to 0 degrees.  The examiner found that the Veteran's abnormal range of motion contributed to functional loss by reducing his capacity for kneeling and squatting.  In addition, the Veteran exhibited pain on flexion, but it did not contribute to functional loss.  He also exhibited moderate pain on palpation of the patellar tendon, pain with weight bearing, and crepitus.  There was no additional loss of function or range of motion on repetitive-use testing.  The examiner was unable to determine without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time.  However, less movement than normal was an additional contributing factor of disability.  

The March 2017 examiner found no evidence of ankylosis or joint instability for either knee.  The Veteran was noted to have constant use of bilateral knee braces due to pain and weakness of the knees.  The examiner also noted that the Veteran had reduced capacity for kneeling and squatting, as well as difficulty with prolonged sitting, standing, and walking due to his knee pain and loss of range of motion.  The examiner did not test for evidence of pain in weight-bearing and non-weight bearing or perform active or passive range of motion due to the risk of aggravating or worsening the Veteran's knee conditions.  

With regard to the Veteran's left knee disability, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for limitation of motion for any part of the period on appeal.  The evidence of record shows that the Veteran's limitations of flexion and extension do not meet the requirements for even a noncompensable rating under Diagnostic Codes 5260 and 5261.  At worst, the Veteran's flexion was limited to 107 degrees and his flexion was limited to 0 degrees, as documented at his April 2017 VA examination.  Nevertheless, the Veteran has been assigned a 10 percent rating for limitation of motion based on painful motion.  Moreover, the Board notes that the additional limitation the Veteran experiences due to pain was accounted for by the VA examiners in determining the Veteran's range of motion.  38 C.F.R. §§ 4.40, 4.45 (2016).  For these reasons, the Board finds that the preponderance of the evidence is against a finding that the Veteran has more limitation of motion than that found on VA examination, to include during his reported painful flare-ups.  Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for functional impairment of the left knee.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2016).  

Consideration has also been given to assigning a separate rating for the Veteran's left knee under other diagnostic codes that pertain to the knee:  Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum).  However, those conditions are not shown on examination.  Therefore, the Board finds that application of the associated diagnostic codes is not warranted.  38 C.F.R. § 4.71a (2016).

With regard to the Veteran's right knee disability, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for limitation of motion prior to May 28, 2010.  In this regard, the Board notes that the evidence of record shows that the Veteran's limitation of flexion does not meet the requirements for even a noncompensable rating under Diagnostic Code 5260, while his limitation of extension only meets the requirements for a noncompensable rating.  The Veteran's flexion was limited to no worse than 83 degrees, as documented on VA examination in March 2017.  The Veteran's extension was limited to no worse than 5 degrees, as documented in VAMC records from October 2009.  Nevertheless, the Veteran has been assigned a 10 percent rating for limitation of motion based on painful motion.   Moreover, the additional limitation the Veteran experiences due to pain was accounted for by the October 2009 and April 2010 clinicians when determining the Veteran's range of motion.  38 C.F.R. §§ 4.40, 4.45 (2016).  For these reasons, the Board finds that the preponderance of the evidence is against a finding that the Veteran has more limitation of motion than that which has been documented, to include during his reported painful flare-ups.  Thus, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for functional impairment of the right knee prior to May 28, 2010.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2016).  

However, the Board finds that the Veteran is entitled to a separate 10 percent rating for right knee instability for the period prior to May 28, 2010.  In this regard, the Board notes that in a June 2009 VAMC record, the Veteran was shown to have symptoms of slight right knee instability.  He also exhibited mild mediolateral laxity at a VAMC appointment in April 2010.  Although there was not an objective finding of instability on VA examination in April 2010, the Veteran reported experiencing his knee giving way.  It was also noted that he wore a brace on his right knee.  Therefore, a separate 10 percent rating for knee instability is warranted from March 15, 2010, the date the Veteran filed his increased rating claim, to May 27, 2010.  38 C.F.R. § 4.71a, Diagnostic Code 5257. 

However, the Veteran is not entitled to a rating in excess of 10 percent for right knee instability.  There is no indication from the record that the Veteran has right knee instability that is moderate in nature.  In fact, while the Veteran has reported feeling as though his knee was giving way, the April 2010 VA examiner found no objective evidence of right knee instability.  Therefore, the Board finds that the Veteran's right knee instability is no more than slight and a rating in excess of 10 percent is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2016).

Consideration has been given to assigning a separate rating for the Veteran's right knee under the other diagnostic codes that pertain to the knee:  Diagnostic Code 5256 (ankylosis), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum).  However, those conditions are not shown on examination.  Therefore, the Board finds that application of the associated diagnostic codes is not warranted.  38 C.F.R. § 4.71a (2016).

Beginning June 1, 2012, the Board finds that the Veteran is entitled to a 60 percent rating for his right knee disability, status post TKA.  Following the end of the schedular temporary total rating, the Veteran has consistently reported symptoms such as painful motion and weakness in the right knee, in addition to physical findings of minimal swelling, mild crepitus with flexion and extension, mild tenderness to moderate pain on palpation, and pain with weight-bearing.  In December 2016, a VA clinician noted that the Veteran should follow-up if his pain worsened or if he wanted to consider a revision procedure, which is indicative of an increase in the severity of his knee pain.  On VA examination in March 2017, the examiner found that the Veteran had chronic residuals of severe painful motion or weakness following his TKA.  Additionally, the Board notes that the Veteran has consistently required the use of a cane and a hinged knee brace for his right knee since June 1, 2012.  Therefore, the Board finds that the Veteran is entitled to an increased rating of 60 percent for his right knee disability from June 1, 2012.  The Board notes that the 60 percent rating is the highest schedular rating allowable for a right knee disability, status post TKA.  38 C.F.R. § 4.71a, Diagnostic Code 5055 (2016).

In addition, the Board notes that there is no evidence of right knee subluxation or instability following the end of the Veteran's schedular temporary total rating for right TKA.  As such, from June 1, 2012, the Veteran is not entitled to a separate rating under Diagnostic Code 5257.

Increased Rating for Low Back

The Veteran's low back disability, diagnosed as degenerative joint disease of the lumbar spine with scoliosis, is currently rated as 10 percent disabling under Diagnostic Codes 5299-5237.    

On VA examination in January 2012, the Veteran reported flare-ups that hurt so badly he was unable to move.  On physical examination, thoracolumbar spine range of motion measurements were flexion to 85 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each.  The Veteran exhibited painful motion at 70 degrees of flexion, 5 degrees of extension, 15 degrees on both right and left lateral flexion, and 15 degrees on both right and left lateral rotation.  The Veteran was unable to perform repetitive use testing due to left leg instability.  However, the examiner found that the Veteran had additional limitation in range of motion after repetitive use testing, with functional loss and functional impairment due to less movement than normal and pain on movement.  The Veteran had muscle atrophy of the left leg and hypoactive deep tendon reflexes of the right knee and right ankle.  He also had active movement against some resistance on all components of muscle strength testing of the left leg.  He had decreased sensation of the lower leg/ankle.  The Veteran was unable to perform the straight leg raising test.  Although the examiner found that the Veteran did not have radiculopathy, it was noted that he had involvement of the sciatic nerve.  The Veteran also reported constant use of a cane.  Imaging studies of the Veteran's low back showed mild scoliosis and advanced multilevel degenerative joint disease.  In terms of functional impact, the examiner noted that the Veteran was unable to stand for prolonged periods and needed to be able to move around freely.  

VAMC notes from October 2012 indicate chronic axial back pain and stiffness, described as aching with prolonged mobility but without radiculopathy, lower extremity muscle weakness or loss of bowel/bladder function.  The Veteran's back was grossly straight, flexion was preserved, and there was moderate tenderness to palpation across the bilateral sacroiliac joints and lower back paraspinously.   

In August 2014, the Veteran had positive tenderness of the lumbosacral spine with no radiation.  In July 2014, he sought hospital care for severe back pain.  

In September 2015, the Veteran rated his back pain as 6/10.  In February 2016, he rated his back pain as 4/10.  In March 2016, the Veteran reported that his back pain was better, and he was using a TENS unit with no problems.  He rated his pain in the mid-back as 3/10.  In April 2016, the Veteran reported being pain free.  He was able to bend and use a chain saw to cut three trees with no back pain.  In addition, on examination, the Veteran did not have loss of range of motion on either flexion or extension.  An occupational therapy note from May 2016 stated that the Veteran's back pain had been abolished, and he had not had any pain for six days.  

On VA examination in March 2017, the Veteran described flare ups that caused a "pinching pain" and reported functional impairment due to his inability to stand for a long time.  On physical examination, thoracolumbar spine range of motion measurements were flexion to 80 degrees, extension to 5 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each.  Pain was noted on examination for all ranges of motion, but the pain did not result in or cause functional loss.  The Veteran exhibited mild lower lumbar paravertebral tenderness.  There was no additional loss of function or range of motion on repetitive use testing.  The examiner could not determine without resort to speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability, with or without flare ups.  The Veteran's localized tenderness did not result in abnormal gait or abnormal spinal contour.  Less movement of the back than normal was noted as a contributing factor of disability.  

On muscle strength testing, the Veteran had active movement against some resistance on right side knee extension and left side knee extension, ankle plantar extension, and ankle dorsiflexion, but all other results were normal.  However, the examiner noted that the Veteran's ankle and knee weaknesses were due to orthopedic issues.  The Veteran's reflex and sensory examinations were normal.  The straight leg raise test was negative and there were no signs or symptoms due to radiculopathy.  The Veteran's low back disability caused him difficulty with prolonged standing, walking, and sitting, as well as some difficulty carrying heavy loads.  Thus, the examiner concluded that any occupation requiring physical activity would be difficult for the Veteran to perform proficiently.  The examiner stated that testing for pain in weight-bearing and non-weight bearing and in active and passive motion was medically inappropriate due to the risk of aggravating or worsening the Veteran's back condition.  

The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his low back disability.  There is no evidence of record indicating that the Veteran had forward flexion limited to 60 degrees or less or that he had combined thoracolumbar spine range of motion limited to 120 degrees or less.  In fact, the Veteran demonstrated forward flexion to 70 degrees and 80 degrees on his respective VA examinations, and his combined range of motion on both examinations was well over 120 degrees.  

Further, there is no evidence that the Veteran has or had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  No abnormal gait or spinal contour was noted at the Veteran's VA examinations.  Additionally, although the Veteran has been diagnosed with scoliosis, there are no findings that his scoliosis is due to muscle spasm or guarding, as required for the next higher rating.  The VA examination reports specifically show that the Veteran's gait was normal, there were no spasms present, and there was no guarding.  Further, there is no indication that the Veteran experienced functional impairment in excess of that reported in the VA examination reports during a painful flare-up.  For these reasons, the Board finds that a rating in excess of 10 percent for the Veteran's low back disability is not warranted.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2016).  

The Board is mindful that the Veteran has consistently complained of low back pain that makes walking and bending difficult.  In conjunction with the rating criteria, VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups.  However, the overall level of disability demonstrated by the Veteran is not commensurate with the loss of range of motion required for a rating in excess of 10 percent even with consideration of pain.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  To the extent that the Veteran reported low back pain, the VA examiners did not note any additional loss of motion or function.  Therefore, with consideration of all pertinent disability factors, there remains no appropriate basis for assigning a schedular rating in excess of 10 percent for functional impairment caused by the Veteran's service-connected low back disability.

The Board has also considered whether there is any other schedular basis for assignment of a higher or separate rating.  In this regard, although the January 2012 VA examiner noted involvement of the Veteran's left sciatic nerve, as well as some muscle atrophy of the left leg and decreased sensation of the lower leg/ankle, there was no finding of radicular pain or any other signs or symptoms due to radiculopathy.  In addition, the Veteran did not have any other neurologic abnormalities or findings related to his thoracolumbar spine.  Similarly, the Veteran did not exhibit radiculopathy on clinical evaluation in October 2012, and the March 2017 VA examiner found no neurologic abnormalities.  The Board therefore finds that the weight of the evidence is against a finding that there is "mild" objective neurological deficit in either lower extremity due to the Veteran's low back disability, as necessary for a separate (compensable) rating.  Furthermore, there is no evidence, to include allegation, of incapacitating episodes.  Therefore, the Board concludes that the Veteran's low back disability does not warrant a separate compensable rating for neurological impairment or a higher rating based on incapacitating episodes.  See 38 C.F.R. § 4.71, Diagnostic Codes 5235 to 5243, Notes 1 & 6.

Increased Rating for Residuals of Right Ankle/Foot Injury

The Veteran has a noncompensable rating prior to March 1, 2017, and a 10 percent rating from March 1, 2017, for residuals of a right ankle/foot injury, which is rated under Diagnostic Code 5271 for limitation of motion of the ankle.  

On VA examination in January 2012, the Veteran reported flare-ups of his right ankle disability that consisted of getting muscle cramps with prolonged activity.  The Veteran's regular use of a cane was noted.  On examination, right ankle plantar flexion was to 40 degrees and dorsiflexion was to 15 degrees.  There was no objective evidence of painful motion on range of motion, range of motion was unchanged after repetitive use, and the Veteran had no functional loss.  Talar tilt could not be tested, but the Veteran did not exhibit laxity on the anterior drawer test.  There were no abnormal findings on imaging studies of the Veteran's ankle, and the examiner concluded that the Veteran's ankle disability did not impact his ability to work.  

At his March 2017 examination, the Veteran reported that his disability caused sharp foot pain and made it difficult for him to walk.  On range of motion, the Veteran's right ankle was abnormal or outside the normal range.  Specifically, he had range of motion to 15 degrees on dorsiflexion, with pain, and to 40 degrees on plantar flexion.  However, the range of motion did not contribute to functional loss.  In addition, the pain noted on examination did not result in or cause functional loss.  There was no additional loss of function or range of motion on repetitive use testing.  The examiner could not opine as to whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time, as the Veteran was not examined following repeated use.  However, the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statement's regarding functional loss.  The Veteran exhibited less movement of his right ankle than normal due to his disability.  There was no evidence of ankylosis or ankle instability/dislocation.  Imaging studies of the ankle were not performed.  As to functional impact, the Veteran was noted to have reduced tolerance for prolonged standing and walking.  Therefore, the examiner concluded that any occupation requiring such activity would be difficult for the Veteran to perform well.  In addition, the examiner noted that testing for pain in weight-bearing and non-weight bearing, and with active and passive motion, was medically inappropriate due to the risk of aggravating or worsening the Veteran's ankle condition.  

The Board finds that a compensable disability rating is not warranted for the Veteran's right ankle disability prior to March 1, 2017.  A compensable disability rating of 10 percent is available under Diagnostic Code 5271 when limitation of motion in the ankle is moderate.  Here, the clinical findings do not reflect that the Veteran's right ankle disability manifests in marked limitation of motion.  In this respect, the January 2012 VA examination report shows that the Veteran had range of motion that was within 5 degrees of full range of motion on both plantar flexion and dorsiflexion, with no reduction in range of motion after repetitive use.  In addition, there was no finding of painful motion.  Hence, the Board does not find that the Veteran's limitation of motion of the right ankle is "moderate," as he was able to perform nearly full range of motion on both plantar flexion and dorsiflexion without objective evidence of pain.  Accordingly, a compensable disability rating is not warranted prior to March 1, 2017.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  

Beginning March 1, 2017, a rating in excess of 10 percent is not warranted for the Veteran's right ankle disability.  A maximum disability rating of 20 percent is available under Diagnostic Code 5271 when limitation of motion in the ankle is marked.  According to the March 2017 VA examination report, the Veteran had range of motion that was within 5 degrees of full range of motion on both plantar flexion and dorsiflexion, with no reduction in range of motion after repetitive use.   As the Veteran was able to perform nearly full range of motion on both plantar flexion and dorsiflexion, the Board does not find limitation of motion of the right ankle to be "marked."  Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's right ankle disability from March 1, 2017.  38 C.F.R. § 4.71a, Diagnostic Code 5271.    

The Board has considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40, 4.45, and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment and loss.  The Veteran has endorsed symptoms of pain, cramping, and difficulty walking.  However, the clinical findings of record do not show that the joint function of the Veteran's right ankle is additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  See Mitchell v. Shinseki, 25 Vet. App. 32, 37-44 (2011).  Indeed, throughout the period on appeal, the Veteran's range of motion for the right ankle remained largely intact, and the VA examiners found that the Veteran's activities of daily living and occupational functioning were not impaired by his ankle disability.  Accordingly, the Board finds that any additional functional impairment and loss is not comparable to marked limitation of motion of the ankle.  38 C.F.R. § 4.71a, Diagnostic Code 5271.  Therefore, entitlement to a compensable disability rating prior to March 1, 2017, and to a rating in excess of 10 percent from March 1, 2017, is not warranted.

The Board has also considered whether any other diagnostic codes pertaining to the Veteran's right ankle disability are applicable in this case.  The Veteran's right ankle disability does not warrant a separate or higher disability rating under Diagnostic Codes 5270 or 5272 at any time during the appeal period because he has never demonstrated or been diagnosed with ankylosis of the right ankle.  Similarly, separate or higher ratings under Diagnostic Codes 5273 or 5274 are not warranted, as there is no diagnosis of record related to malunion of the os calcis or astragalus, and the Veteran has not had an astragalectomy.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5270, 5272, 5273, 5274.

Increased Rating for Bilateral Pes Planus

The Veteran's bilateral pes planus is assigned a 20 percent rating prior to March 1, 2017, and a 30 percent rating from March 1, 2017, pursuant to Diagnostic Code 5276.  

On VA examination in January 2012, the Veteran was shown to have pes planus of his left foot.  He had pain on use and pain accentuated on use of his left foot, as well as pain on manipulation of both feet.  There was no swelling on use, no characteristic calluses, and no pronation.  The Veteran had decreased longitudinal arch height on weight bearing in both feet.  In addition, regular use of a cane was noted.  There was no evidence of marked deformity or marked pronation of either foot.  The Veteran's weight-bearing line did not fall over or medial to the great toe, and there was no inward bowing of the Achilles' tendon or marked inward displacement and severe spasm of the Achilles tendon on manipulation.  The examiner found that the Veteran's pes planus condition did not impact his ability to work.  

On examination in March 2017, the Veteran reported experiencing "sharp pain" in his feet that made it difficult for him to walk long distances or stand for a long time.  On physical examination, the Veteran exhibited pain on use and manipulation in both feet and pain accentuated on use and manipulation in both feet.  The Veteran had decreased longitudinal arch height in both feet on weight-bearing.  However, there were no findings of marked deformity, marked pronation, or weight-bearing line falling over or medial to the great toe.  The Veteran did not have inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon.  The examiner found that the Veteran had pain on physical examination in both feet that contributed to functional loss consisting of disturbance of locomotion, interference with standing, and lack of endurance.  The Veteran had reduced tolerance for prolonged walking and standing in both feet, which significantly limited his functional ability during flare-ups or on repeated use over a period of time.  No imaging studies were performed.  The examiner noted that any occupation requiring prolonged standing and walking would be difficult for the Veteran to perform well.  

Based on this evidence, the Board finds that a rating in excess of 20 percent prior to March 1, 2017, and in excess of 30 percent after March 1, 2017, for service-connected bilateral pes planus is not warranted.  Prior to March 1, 2017, there is no evidence that the Veteran had severe pes planus of the right foot, such as would warrant a 30 percent rating for bilateral severe pes planus.  Although the Veteran's right foot exhibited decreased longitudinal arch height on weight bearing and pain on manipulation at the January 2012 VA examination, such findings do not rise to the level of severe pes planus with objective evidence of marked deformity, pain on manipulation and use accentuated, swelling on use, or characteristic callosities.  In fact, the examiner did not provide a diagnosis of pes planus for the Veteran's right foot.  In addition, there is no evidence that the Veteran's unilateral (left) pes planus was pronounced, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or that it was not improved by orthopedic shoes or appliances, such as would warrant a 30 percent rating.  38 C.F.R. § 4.71a, Diagnostic Code 5276.

After March 1, 2017, the Veteran was found to have bilateral pes planus manifested by pain accentuated on use and on manipulation in both feet.  However, there was no evidence of pronounced bilateral pes planus with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or the use of orthopedic shoes or appliances.  Therefore, the Veteran does not exhibit symptomatology sufficient to warrant a 50 percent rating for his bilateral pes planus.  38 C.F.R. § 4.71a, Diagnostic Code 5276. 

Increased Ratings for Bilateral Hammer Toes

The Veteran's right and left hammer toe disabilities are currently rated as noncompensable under Diagnostic Code 5280.  

At the outset, the Board notes that the March 2017 rating codesheet lists Diagnostic Code 5280 as the code for the Veteran's hammer toe disabilities.  However, under the Rating Schedule for the foot, Diagnostic Code 5280 pertains to unilateral hallux valgus, for which a 10 percent rating is provided.  There is no evidence in the record of a diagnosis of hallux valgus, whereas there is clear evidence of bilateral hammer toe disabilities.  The Board thus finds the use of Diagnostic Code 5280 on the March 2017 codesheet to be erroneous.  Instead, Diagnostic Code 5282 contemplates hammer toe disabilities.  

On VA examination in January 2011, the Veteran was noted to have hammer toes of the right great toe and the left great toe.  On VA examination in March 2017, the Veteran was noted to have hammer toes of the right great toe, second toe, and third toe, as well as hammer toes of the left second toe, third toe, and fourth toe.    

The evidence shows that the Veteran has, at most, three hammer toes in each foot, which is less than all toes, unilateral without claw foot, as required for a higher 10 percent rating.  The Veteran has not complained of pain in his toes or forefeet during the course of the appeal, and there is no evidence that the Veteran's hammer toes have affected his gait.  In fact, the Veteran has not expressed any complaints or described any symptoms specific to his hammer toe disabilities.  Accordingly, the Board finds that the criteria for compensable ratings for the Veteran's right and left hammer toe disabilities have not been met.  38 C.F.R. § 4.71a, Diagnostic Code 5282.   


ORDER

Entitlement to a rating in excess of 10 percent for service-connected left knee chondromalacia patella with degenerative joint disease is denied. 
	
Entitlement to a rating in excess of 10 percent prior to May 28, 2010, for service-connected degenerative joint disease of the right knee is denied.

Entitlement to a rating of 10 percent, but not higher, from March 15, 2010, to May 27, 2010, for right knee instability is granted.

Entitlement to a rating of 60 percent, but not higher, from June 1, 2012, for service-connected right total knee arthroplasty is granted.

Entitlement to a rating in excess of 10 percent for service-connected degenerative joint disease of the lumbar spine with scoliosis is denied.

Entitlement to a compensable rating prior to March 1, 2017, and to a rating in excess of 10 percent from March 1, 2017, for service-connected residuals of a right ankle/foot injury, is denied.  

Entitlement to a rating in excess of 20 percent prior to March 1, 2017, and in excess of 30 percent from March 1, 2017, for service-connected bilateral pes planus is denied.

Entitlement to a compensable rating for service-connected hammer toe deformities of the left foot is denied. 

Entitlement to a compensable rating for service-connected hammer toe deformities of the right foot is denied.


REMAND

The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided. 

With regard to the Veteran's claim for a higher rating for a left shoulder strain with osteoarthritis of the acromioclavicular joint, the Veteran was provided a VA examination in January 2012.  VA examinations for musculoskeletal disability must 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); 38 C.F.R. § 4.59 (2016).

The Board has reviewed the January 2012 VA examination report and concludes that the findings do not meet the requirements of 38 C.F.R. § 4.59 pursuant to Correia.  Thus, the examination may not accurately represent the Veteran's current disability picture with regard to his left shoulder.  Therefore, the Board finds that a new examination is necessary.  

With regard to the Veteran's claim for a higher rating for residuals of a left ankle/foot injury, the Veteran was provided VA examinations in January 2012 and March 2017.  In January 2012, the Veteran was noted to have ankylosis of the left ankle in plantar flexion at less than 30 degrees.  The examiner concluded that the Veteran's left ankle functioning was so diminished that amputation with prosthesis would equally serve the Veteran.  The VA examiner in March 2017 found that the Veteran did not have ankylosis of the left ankle or functioning so diminished that he would be equally served by amputation with prosthesis.  However, the March 2017 examiner did not address the January 2012 VA examination findings or consider relevant VAMC records indicating that the Veteran's left ankle is fused or partially fused.  Accordingly, the Board finds that remand is warranted for a new VA ankle examination that considers the Veteran's full medical history and reconciles the contradictory findings in the January 2012 and March 2017 examination reports.  

With regard to the Veteran's claim of entitlement to TDIU, the Board notes that the Veteran has reported being unable to work due to his service-connected disabilities.  However, the current level of severity of impairment from his left shoulder and left ankle/foot disabilities is unknown.  Therefore, the issue of entitlement to TDIU is inextricably intertwined with the adjudication of the Veteran's claims for higher ratings for his left shoulder and left ankle/foot disabilities.  The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Here, the issues of entitlement to an increased rating for the Veteran's left shoulder strain with osteoarthritis of the acromioclavicular joint and to an increased rating for residuals of a left ankle/foot injury should be appropriately developed and adjudicated before the claim of entitlement to TDIU is decided.

Accordingly, the case is REMANDED for the following action:

1.  Identify and obtain any outstanding, pertinent VA and private treatment records not already of record in the claims file.  

2.  Schedule the Veteran for a VA shoulder examination to determine the current severity of his left shoulder strain with osteoarthritis of the acromioclavicular joint.  All indicated tests and studies must be performed.  The examiner should provide all information required for rating purposes, to specifically include testing the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joints.  

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so.  

3.  Schedule the Veteran for a VA ankle examination to determine the current severity of his residuals of a left ankle/foot injury.  All indicated tests and studies must be performed.  The examiner should provide all information required for rating purposes, to specifically include testing the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joints.  

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so.  

The examiner is asked to specifically discuss the January 2012 VA examination report, which found functionality of the Veteran's left ankle so diminished that amputation with prosthesis would equally serve him, and the March 2017 VA examination report, which found functionality of the Veteran's left ankle NOT so diminished that amputation with prosthesis would equally serve him.  The examiner is also asked to discuss whether the Veteran has ankylosis of the left foot, which was found on VA examination in January 2012, but not in March 2017.  The VA examiner is asked to resolve the discrepancies between the January 2012 and March 2017 VA examination reports regarding the severity of the Veteran's left ankle disability.  This examiner's findings should specifically include consideration of relevant VA medical records, to include those indicating that the Veteran's left ankle is fused or partially fused.  

4.  Confirm that the VA examination reports comport with this Remand and undertake any other development found to be warranted.

5.  Then, readjudicate the remaining claims on appeal.  If a decision is adverse to the Veteran, issue a supplemental statement of the case, allow appropriate time for response, and return the case to the Board.

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

This claim 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. §§ 5109B, 7112 (2014).



______________________________________________
Kristin Haddock
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s