Citation Nr: 1761189
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 14-30 767 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine.

2. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee.

3. Entitlement to a rating in excess of 10 percent for limited extension of the right knee.

4. Entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee.

5. Entitlement to a rating in excess of 10 percent for limited extension of the left knee.

6. Entitlement to a compensable rating for osteoarthritis of the right ankle.

7. Entitlement to a compensable rating for osteoarthritis of the left ankle.

8. Entitlement to a total disability rating due to individual unemployability (TDIU).
REPRESENTATION

Veteran represented by: Barbara R. Lincoln, Agent

WITNESSES AT HEARING ON APPEAL

The Veteran and his wife

ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel

INTRODUCTION

The Veteran served on active duty from August 1960 to August 1962.

This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In June 2016, the Veteran and his wife testified at a hearing via videoconference before the undersigned Veterans Law Judge. A transcript of the proceeding is of record.

In August 2016, the appeal was remanded to the RO for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review.

The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDINGS OF FACT

1. The Veteran’s lumbar spine disability is manifested by of range of motion of forward flexion to no less than 90 degrees and a combined range of motion to greater than 120 degrees, without muscle spasm or guarding or additional loss of function on repetition due to pain, weakness, fatigability, or lack of endurance.

2. The Veteran’s right knee disability is manifested by flexion to no less than 90 degrees with pain and extension to 0 degrees or hyperextension.

3. The Veteran’s left knee disability is manifested by flexion to no less than 90 degrees with pain and extension to 0 degrees or hyperextension.

4. The Veteran’s right ankle disability is manifested by osteoarthritis shown by x-ray resulting in painful motion.

5. The Veteran’s left ankle disability is manifested by osteoarthritis shown by x-ray resulting in painful motion.

6. The Veteran is not unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017).

2. The criteria for a rating in excess of 10 percent for osteoarthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017).

3. The criteria for a rating in excess of 10 percent for limited of extension of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2017).

4. The criteria for a rating in excess of 10 percent for osteoarthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017).

5. The criteria for a rating in excess of 10 percent for limited of extension of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R.
§ 4.71a, Diagnostic Code 5261 (2017).

6. The criteria for a rating of 10 percent, but no greater, for osteoarthritis of the right ankle have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R.
§ 4.71a, Diagnostic Code 5271 (2017).

7. The criteria for a rating of 10 percent, but no greater, for osteoarthritis of the left ankle have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2017).

8. The criteria for entitlement to TDIU have not been met. 38 US.C.A. § 5110 (b)(2) (West 2014); 38 C.F.R. §§ 3.400, 4.16 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claims.

The record reflects that all available pertinent treatment records, to include available post-service VA and private treatment records, have been obtained. The Veteran has not identified any outstanding, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Moreover, the Veteran has been provided appropriate VA examinations.

Accordingly, the Board will address the merits of the claims.

II. General Legal Criteria

Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).

Each disability must be considered from the point of view of the Veteran working or seeking work. See 38 C.F.R. § 4.2 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength2, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage and the functional loss with respect to all of these elements. 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).

The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R.
§§ 3.102, 4.3 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disabilities.

III. Degenerative Disc Disease of the Lumbar Spine

Legal Criteria

The Veteran’s lumbar spine disability is rated as 10 percent disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2017). As relevant to the lumbar spine, under the General Rating Formula for Diseases and Injuries of the Spine, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height is assigned a 10 percent rating.

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating requires unfavorable ankylosis of the entire cervical spine or forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine.

The notes applicable to the General Formula are as follows:

Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

38 C.F.R. § 4.71, Diagnostic Codes 5235-5243 (2017).

Three VA examinations were performed in connection with the claim, in December 2011, February 2014, and May 2017. At the December 2011 VA examination, the Veteran reported aching pain and stiffness with complaints of being unable to sit too long requiring him to get up and move around. He denied flare-ups. The Veteran used a cane, but the examiner noted that the assistive device was used for the knees, not the back. Range of motion measurements were forward flexion to 90 degrees or grater, extension to 30 degrees or greater, and right and left lateral flexion and rotation each to 30 degrees or greater. There was no objective evidence of painful motion and no further loss of functionality after repetition of movement. The examiner observed no localized tenderness or pain to palpation or guarding or muscle spasm of the thoracolumbar spine. Strength, reflexes, and sensorimotor testing of the bilateral lower extremities were normal. The straight leg raise test was negative.

At the February 2014 VA examination, forward flexion of the spine was to 90 degrees or greater. Extension, right and left lateral flexion, and right and left rotation were each to 20 degrees. There was no objective evidence of painful motion noted. Repetitive motion did not result in further loss of range of motion. The examiner found no localized tenderness or pain to palpation or guarding or muscle spasm. Muscle strength, reflex, and sensorimotor testing were all normal. Straight leg raise testing was negative, and the examiner indicated that there were no signs or symptoms of radiculopathy in either lower extremity. The examiner stated that the Veteran does not have IVDS, and that there had been no incapacitating episodes over the prior 12 months. The Veteran was again using a cane, which the examiner noted was for safety.

The May 2017 VA examiner documented subjective complaints of pain at 9/10 on the pain scale that was sharp, intermittent that results in the Veteran being unable to sit, walk, run, or stand after aggravation. The same symptoms were reported as the Veteran’s description of flare-ups. Range of motion measurements were forward flexion to 90 degrees or greater, extension to 30 degrees or greater, and right and left lateral flexion and rotation each to 30 degrees or greater. There was pain noted on forward flexion, but the examiner indicated that the pain did not result in functional loss. There was no evidence of pain on weightbearing or of localized tenderness or pain to palpation or guarding or muscle spasm of the thoracolumbar spine. The examiner also stated that there was no evidence of pain on passive range of motion testing or on non-weight bearing testing of the back. No additional loss of function with repetition was observed, and the examiner stated that pain, weakness, fatigability and incoordination did not significantly limit functional ability with flare-ups. The functional impact of the disability was inability to sit, walk, run and or stand for prolonged periods of time without pain. Strength, reflexes, and sensorimotor testing of the bilateral lower extremities were normal. The straight leg raise test was negative, and the examiner observed no other signs or symptoms of radiculopathy. There was no ankylosis or IVDS of the spine.

Imaging studies throughout the appeal period revealed arthritis of the spine.
Additionally, VA treatment notes do not reflect manifestations of the spine disability that are more severe than those documented at VA examination.

Thus, upon careful consideration of the evidence, the Board determines that an initial rating in excess of 10 percent is not warranted for the Veteran’s lumbar spine disability. The 10 percent rating contemplates the Veteran’s limitation of forward flexion to no less than 90 degrees with pain observed with movement. A rating in excess of 10 percent requires forward flexion to 60 degrees or less or evidence of muscle spasm or guarding causing abnormal gait or spinal contour. Neither muscle spasm nor guarding was observed at any point during the appeal period, and there was no additional functional loss with repetition of motion. In addition, no examiner documented any additional loss of function due to pain, weakness, fatigability, or incoordination. There were also no radiculopathy symptoms to warrant a separate rating for neurological disability of either lower extremity. For these reasons, the Board finds that a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is not warranted at any time during the appeal period.

Therefore, the Board concludes that a preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s lumbar spine disability. The claim is, therefore, denied.

IV. Right and Left Knee Disabilities

Legal Criteria

The Veteran’s right and left knee disabilities have each been assigned a 10 percent rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260.

Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Further, the provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and “99.” Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen.

Under Diagnostic Code 5003, arthritis, degenerative, substantiated by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. With X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating episodes, a 20 percent rating will be assigned. With X-ray evidence of involvement of 2 or more major joints, a 10 percent rating will be assigned. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Diagnostic Code 5003, Note (1).

Diagnostic Code 5260 provides that flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating.

Under Diagnostic Code 5261, extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Where extension is limited to 20 degrees, a 30 percent rating is assigned. Where extension is limited to 30 degrees, a 40 percent rating is assigned. Where extension is limited to 45 degrees, a 50 percent rating is assigned.

VA’s General Counsel has issued multiple opinions which are also relevant to the rating of the Veteran’s knee disabilities. The first indicates that a disability rated under Diagnostic Code 5257 may be rated separately under Diagnostic Codes 5260, limitation of flexion of the knee, and 5261, limitation of extension of the knee. See VAOGCPREC 23- 97.

Another opinion states that separate disability ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint without violating the provisions against pyramiding at 38 C.F.R. § 4.14 . VAOPGCPREC 9-04.

Finally, a third opinion opines that limitation of motion is contemplated in Diagnostic Code 5259, pertinent to the removal of the semilunar cartilage or meniscus. VAOPGCPREC 9-98. Such removal may resolve restriction of movement caused by tears and displacements of the menisci; however, the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, according to the opinion, limitation of motion is relevant for consideration under Diagnostic Code 5259. Further, by analogy, limitation of motion is also a consideration under Diagnostic Code 5258.

Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II.

Analysis

The Board initially notes that the Veteran’s disabilities of the right and left knee have been rated under both Diagnostic Code 5003 and Diagnostic Code 5261. However, as indicated above, a rating under Diagnostic Code 5003 and any of the limitation of motion rating codes is impermissible. However, in this case, the rating under Diagnostic Code 5003 is based on the criteria of Diagnostic Code 5260, and separate ratings pursuant to Diagnostic Codes 5260 and 5261 are allowed. Nevertheless, to avoid confusion, the Board determines that the Veteran’s osteoarthritis of the right and left knee should be rated solely under Diagnostic Code 5260. As this change is administrative only and has no effect on the Veteran’s assigned ratings, the Board finds no prejudice to him in effecting this change to his rating evaluation.

Three VA examinations were performed in connection with the claim, in December 2011, April 2014, and May 2017. The December 2011 VA examiner noted a diagnosis of degenerative joint disease of the bilateral knees. The Veteran reported pain with prolonged ambulation that did not limit walking distances or standing. He denied flare-ups. Range of motion in each knee was flexion to 140 degrees or greater with pain beginning at 90 degrees. Extension was to 0 degrees or to any degree of hyperextension. There was no objective evidence of painful motion on extension. Repetition resulted in no additional functional loss. The examiner noted no tenderness to palpation of either knee. Muscle strength and joint stability testing was normal, and there was no evidence of subluxation or dislocation on either side. The examiner noted a history of bilateral meniscectomies for meniscal tears. Surgical scars associated with the meniscectomies were documented, but the scars were not painful, unstable, or greater than 39 square centimeters in size. The examiner noted the use of both knee braces and a cane for stability.

In April 2014, the examiner diagnosed degenerative joint disease of both knees with limited extension. The Veteran denied having flare-ups of either knee disability. Range of motion in each knee was flexion to 110 degrees or greater with pain beginning at 110 degrees. Extension was to 0 degrees or to any degree of hyperextension. There was no objective evidence of painful motion on extension. Range of motion remained unchanged after repetitive testing. The examiner noted tenderness to palpation of both knees. Muscle strength and joint stability testing was normal, and there was no evidence of subluxation or dislocation on either side. No findings regarding the Veteran’s meniscal surgeries or scars were reported. The examiner noted a history of bilateral meniscectomies for meniscal tears. Surgical scars associated with the meniscectomies were documented, but the scars were not painful, unstable, or greater than 39 square centimeters in size. The examiner noted the use of both knee braces and a cane for stability.

The May 2017 VA examiner documented diagnosis of degenerative joint disease if each knee, as well as severe genu varum of each knee. The Veteran reported flare-ups were described also as causing pain 9/10 that is sharp and intermittent. The occasional use of a brace, but no cane, was documented. Range of motion was reported as all normal, from 0 to 140 degrees in each knee. Pain was noted, but the examiner indicated that the pain does not cause functional loss. There was no localized tenderness or pain to palpation. No additional loss of function with repetition was observed, and the examiner stated that pain, weakness, fatigability and incoordination did not significantly limit functional ability with flare-ups. Testing of joint instability and the menisci was normal. The examiner found no residual signs or symptoms of either the right or left menisectomy. The examiner noted no evidence of pain on passive range of motion or non-weight bearing testing of either the right or left knee.

Neither VA nor private treatment records reveal manifestations of either the right or left knee disabilities that are more severe than documented above. Accordingly, the Board determines that a rating in excess of 10 percent is not warranted for either the osteoarthritis (rated under Diagnostic Code 5260) or limitation of extension of the right and left knees. The 10 percent rating contemplates the Veteran’s any limitation of flexion or extension noted during the appeal period, to include the 90 degrees of flexion found at the December 2011 VA examination. A rating in excess of 10 percent for limitation of flexion requires flexion to no greater than 30 degrees, and a rating in excess of 10 percent for limitation of extension requires extension to 10 degrees or more. These symptoms were not exhibited at any point during the appeal period.

The Board has also considered a rating under other diagnostic codes for the knee.
VAOGCPREC 23- 97; VAOPGCPREC 9-98; VAOPGCPREC 9-04. However, as the Veteran’s right and left knee disabilities do not exhibit ankylosis, instability, subluxation, dislocation or removal of the semilunar cartilages, impairment of the tibia and fibula, or genu recurvatum, separate ratings pursuant to Diagnostic Codes 5256, 5257, 5258, 5259, 5261, 5262, and 5263, are not warranted. The May 2017 VA examiner stated that the Veteran’s genu varum is congenital, and, therefore, it is not subject to service connection or a separate rating.

In addition, the Veteran’s surgical scar has not been shown to be symptomatic, e.g., painful or unstable. Therefore, a separate rating for either the scar of the right or left knee is supported by the evidence. See 38 C.F.R. Part 4, Diagnostic Codes 7803, 7804, 7805.

In light of the above analysis, the Board determines that a preponderance of the evidence is against ratings in excess of 10 percent for the Veteran’s right and left knee osteoarthritis and extension. Therefore, the claims are denied.

V. Right and Left Ankle Disabilities

Legal Criteria

The Veteran’s osteoarthritis of the right and left ankle have each been rated noncompensably, pursuant to 38 C.F.R. § 4.71a , Diagnostic Code 5271 (2017). Under these criteria, a 10 percent rating is assigned for moderate limitation of motion, and a 20 percent rating is assigned for marked limitation of motion. A 20 percent rating is the maximum rating available under Diagnostic Code 5271.

A 10 percent rating is warranted where arthritis is confirmed by X-ray and there is pain on motion.38 C.F.R. § 4.59 (2009); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991).

Normal range of ankle motion is from 20 degrees of upward dorsiflexion to 45 degrees of downward plantar flexion. 38 C.F.R. § 4.71, Plate II.

The words “moderate” “moderately severe,” and “marked,” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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.

The Veteran was afforded three VA examinations of his bilateral ankles during the appeal period, in December 2011, April 2014, and May 2017. At the December 2011 VA examination, the Veteran reported pain with ambulation. The examiner explicitly stated that the Veteran does not have arthritis in his right or left ankle. Range of motion was plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater in each ankle, and there was no objective evidence of painful motion. Repetition of motion resulted in no additional loss of function. The Veteran denied flare-ups. There was no localized tenderness or pain to palpation of the bilateral ankles. Muscle strength testing was normal, and there were no other symptoms associated with the bilateral ankles observed. The examiner noted the Veteran’s use of a cane, but stated that the assistive device was for the knees, not the ankles.

An April 2014 VA examination documents a diagnosis of degenerative joint disease of both ankles. Range of motion was plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater in each ankle, and there was no objective evidence of painful motion. Repetition of motion resulted in no additional loss of function. The Veteran described flare-ups as resulting in more pain of he is active. The examiner observed no localized tenderness or pain to palpation of either ankle. There were no findings of ankylosis or joint instability or if any other disabilities associated with the bilateral ankles, such as shin splints or Achilles tendonitis. The use of a cane was noted for support and to prevent falls.

At the May 2017 VA examination, the Veteran described symptoms that become worse with running and walking and pain 9/10 that is sharp and intermittent. Flare-ups were described also as causing pain 9/10 that is sharp and intermittent. Range of motion measurements, both initial and after repetitive use, were normal. No additional loss of function with repetition was observed, and the examiner stated that pain, weakness, fatigability and incoordination did not significantly limit functional ability with flare-ups. The examiner noted no evidence of pain on passive range of motion or non-weight bearing testing of either the right or left ankle. There was no loss of strength or muscle atrophy found, and the examiner reported no ankylosis. Loss of function included interference with sitting, walking, running, and standing after aggravation.

The Board has carefully considered the above evidence, as well as the treatment notes of record. Treatment notes confirm the diagnosis of arthritis of the bilateral ankles, but otherwise offer no other symptoms that are pertinent to the rating criteria.

Thus, based on the above evidence, the Board determines that compensable ratings are not warranted for either the right or left ankle disabilities. VA examinations consistently show that the Veteran has no limitation of motion of either ankle or pain with movement. However, the Veteran has also consistently reported pain with walking and/or running. Further, while the December 2011 VA examiner explicitly stated that there was no arthritis in either ankle, service connection was granted for osteoarthritis in each ankle, and October 2009 submission from Dr. Cox specifically stated that the Veteran has osteoarthritis of the ankles. Imaging studies have also confirmed the presence of arthritis in both ankles. In light of these facts, the Board determines that a rating of 10 percent, but no greater, is warranted for the Veteran’s right and left ankle disabilities as compensation for pain on motion in the presence of arthritis. A rating in excess of 10 percent is not warranted absent the presence of marked limitation of motion, which is not shown in this case. Therefore, ratings in excess of 10 percent for the right or left ankle disabilities are denied.

The Board has considered the benefit of the doubt doctrine and applied it in assigning the 10 percent rating to each ankle disability. A preponderance of the evidence is against a rating greater than 10 percent. Therefore, claims for such ratings are denied.

VI. TDIU

Legal Criteria

Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a).

“Substantially gainful employment” is not currently defined in VA regulations. For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which takes the claimant’s case outside the norm for such a veteran and not just that the Veteran is unemployed or has difficulty finding employment.

If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For purposes of calculating the percentage requirements of one 60 percent disability, or one 40 percent disability, the following disabilities will be considered one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §§ 3.341 (a), 4.16 (a) (2017).

In reaching a determination of TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

Analysis

Initially, the Board finds that the Veteran does not meet the threshold criteria for entitlement to TDIU. As the Veteran’s lumbar spine, left knee, and right and left ankle disabilities have each been service-connected as due to his service-connected right knee disability, they have a common etiology and so are considered one disability for the purposes of TDIU determinations. The 10 percent ratings assigned to each of those disabilities combine to a 40 percent rating. However, as the Veteran’s total combined rating is 50 percent rather than 70 percent, the threshold criteria for entitlement to TDIU are not met in this case.

Moreover, the evidence does not establish that the Veteran is unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. VA examiners in December 2011, February 2014, April 2014, and May 2017 consistently found that the Veteran was capable of non-physical, sedentary work or work that had limited standing or walking. The only contradictory competent opinion is the October 2009 submission of Dr. RDC, which states only that the Veteran is unemployable due to his “severe osteoarthritis of the knees, ankles, and lumbar disc disease.” However, Dr. RDC did not provide a rationale for this opinion, and therefore, it lacks probative value. An opinion that contains only data and conclusions is afforded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Moreover, as is evident by the above discussion, the Veteran’s osteoarthritis is not severe.

The Board further notes a letter from Dr. DRJ dated in September 2000 that discusses the Veteran’s bilateral knee disabilities and indicates that the disabilities a are likely to become worse and so he advised the Veteran that he should seek medical retirement. However, this statement only refers to the Veteran’s then-current employment and does not address whether the Veteran could engage in other substantially gainful occupations. Therefore, this statement is inadequate as a basis for granting TDIU.

Accordingly, the Board determines that the Veteran is not unable to obtain or maintain substantially gainful employment due solely to service-connected disabilities. The claim of entitlement to TDIU is, therefore, denied.

ORDER

Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine is denied.

Entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee is denied.

Entitlement to a rating in excess of 10 percent for limited extension of the right knee is denied.

Entitlement to a rating in excess of 10 percent for osteoarthritis of the left knee is denied.

Entitlement to a rating in excess of 10 percent for limited extension of the left knee is denied.

Entitlement to 10 percent rating, but no greater, for osteoarthritis of the right ankle is granted.

Entitlement to 10 percent rating, but no greater, for osteoarthritis of the left ankle is granted.

Entitlement to a total disability rating due to individual unemployability (TDIU) is denied.

______________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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