Citation Nr: 18123996
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 13-04 321
DATE:	August 6, 2018
ORDER
Service connection for right ankle disability is denied.
Service connection for left ankle disability is denied.
A rating in excess of 10 percent for right knee patellofemoral pain syndrome is denied.
A rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied.
FINDINGS OF FACT
1. A current right and left ankle disorder, including tenosynovitis and peroneal tendinitis, was not manifest in service and is unrelated to service.  
2. The Veteran's right and left knee patellofemoral pain syndromes are manifested by painful flexion motion which is slightly limited.  Neither knee is limited to 30 degrees or less, and limitation of extension, recurrent subluxation or lateral instability, dislocated semilunar cartilage of either knee with frequent episodes of "locking," pain, and effusion into the joint, and/or symptomatic removal of the semilunar cartilage, are denied and/or not shown.
CONCLUSIONS OF LAW
1. The criteria for service connection for right ankle disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.
2. The criteria for service connection for left ankle disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309.
3. The criteria for a rating in excess of 10 percent for right knee patellofemoral pain syndrome have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5260.
4. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5260.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1991 to August 1993.  She appeals for the benefits at issue and presented testimony during an October 2014 hearing before the undersigned Veterans Law Judge, who remanded the appeals to the RO in August 2017.
Service Connection
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Service connection may be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a) that manifest to a degree of 10 percent within 1 year of service separation or during service and then again at a later date.  38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed.Cir.2013).  Arthritis is listed as a chronic disease.  Evidence of continuity of symptomatology may be sufficient to invoke this presumption if a claimant demonstrates (1) that a condition was “noted” during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 496–97(1997)); see 38 C.F.R. § 3.303(b).
Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder.  38 C.F.R. § 3.310.  Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected.  Allen v. Brown, 7 Vet. App. 439 (1995).  In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury.  38 C.F.R. § 3.310.  
Based on the evidence, the Board concludes that service connection is not warranted for right or left ankle disability, which the preponderance of the evidence shows is peroneal tendinitis.  The preponderance of the evidence indicates that it was not manifest in service or to a degree of 10 percent within 1 separation and is unrelated to service.  
First, service treatment records are silent for reference to ankle complaints, treatment, or diagnosis, and the Veteran’s ankles were assessed as normal at the time of her June 1993 service discharge examination shortly prior to her service discharge in August 1993.  It is important to note that she also denied having or having had pertinent symptomatology at that time.  She had an instance of left leg symptomatology in service from February to March 1992, but this was in the area of the mid-shaft of the posteromedial tibia (above or “proximal” to the ankle), rather than in the ankle.  
The first indication in records of any ankle disorder is many years after service, in 2008.  In July 2008, the Veteran reported that about a month beforehand, she had a viral type of illness with a fever and a rash, and then developed itchiness in her hands and ankles.  Since then, she had had pain in her ankles and other places.  The Veteran reported that from time to time, her ankles swell, and the doctor felt that it was a post-viral arthropathy.  Then, in January 2010, the Veteran was found to have tenosynovitis of both ankles.  While she reported that she had had it for many years, and she also asserted in February 2009, when she filed her claim, that it began in 1991.  However, the preponderance of the evidence, as explained in the discussion below, is against a finding that a disability involving the tendons of the ankle is related to service.  To the contrary, it appears that she does not have it.  Also, while she testified in October 2014 that her ankles would get puffy in service, this is inconsistent with the service medical record showing no abnormalities of the lower extremities at separation, as well as the medical history she provided shortly prior to service discharge.  Given these inconsistencies, the Board finds that statements with respect to chronic bilateral ankle symptomatology in service and since service are less than credible.
There was also a negative nexus opinion for each ankle at the time of a VA examination in September 2015.  However, the examiner based that opinion in part on the finding that the ankle examination at the time was normal.  The Board remanded in August 2017 for another examination, as it appeared that the Veteran might have had an ankle disability prior to this and during the claim period.
At the time of the VA examination in January 2018, the examiner objectively identified the Veteran's current ankle disability as peroneal tendinitis, indicating that there was tenderness over both of the Veteran's peroneal tendons, without other localizing features to suggest other pathology.  This supported the VA examiner’s diagnosis and so it is a valid diagnosis.  He also reviewed the record and felt that there was no (satisfactory) evidence to suggest that it is related to the Veteran's service.  The reasons included that there was no evidence to suggest that the Veteran's current peroneal tendinitis was present even in 2015, when a VA examination did not find it, and that it was certainly not present at the time of the Veteran's service.  The examiner questioned how a diagnosis of tenosynovitis was made in 2010, as the Veteran had normal clinical findings at that time (which the 2010 private medical record shows to be the case).  Additionally, the examiner noted that there was no documentation from the Veteran’s time in service to suggest any ankle condition, and the first treatment shown was in 2008, 15 years post-service.  Even then, the pathology was felt to be post-viral, and the Veteran had not mentioned anything occurring in service at the time, but instead had dated it to very recently following a rash and other symptoms.  The examiner reviewed the buddy and Veteran statements which are of record, but could not give a favorable medical opinion in light of all the evidence.  The Board notes that buddy and Veteran statements conflict with information contained in documentary medical evidence which seems much more probative, as it was being given for health care purposes.  The examiner’s opinion was that it is less likely than not that the Veteran's bilateral peroneal tendinitis is due to her service.  As can be seen from the above, the preponderance of the evidence is against the claims and there is no doubt to be resolved in the Veteran's favor.  The preponderance of the evidence is against a finding that the Veteran's current peroneal tendinitis, or the tenosynovitis assessed earlier during the appeal, was manifest in service or is related to any incident of service.
During the October 2014 hearing, the Veteran’s representative stated that “it’s a tossup whether or not her ankles caused the knees or the knees caused the ankles.”  See the transcript at p. 18.  With respect to the matter of secondary service connection, there is no competent evidence in the record that suggests a connection between the service-connected knee disabilities and the bilateral ankle disorder.  As a lay person, the Veteran’s representative is not competent to address matters like the etiology of the ankle disorder as these issues are medically complex.  Therefore, no further development is warranted with respect to this theory of entitlement.  As there is no competent evidence of record that the Veteran's service connected knee disabilities have caused or aggravated her ankle disabilities, the preponderance of the evidence is against the claim on a secondary basis.
Increased Ratings
The Veteran appeals for higher ratings than the 10 percent each assigned for left and right knee patellofemoral pain syndrome.  The claims were filed in February 2009, and so from then to now is the time period of concern.
Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 

Staged ratings may be assigned for periods of distinct degrees of disability that might result in different levels of compensation from the time the initial claim was filed until a final decision is made.  Fenderson v. West, 12 Vet. App. 119 (1999). 

The Veteran's patellofemoral pain syndrome is currently rated under Code 5260, for limitation of flexion.  

When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria.  See 38 C.F.R. §§ 4.40 , 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint.  See 38 C.F.R. § 4.59.
A 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Code 5257. 

Under Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5259, removal of semilunar cartilage that is symptomatic warrants a 10 percent rating.  38 C.F.R. § 4.71a. 

Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260.  Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating.  38 C.F.R. § 4.71a, Code 5261.  Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full.  38 C.F.R. § 4.71, Plate II. 

When evaluating disabilities of the musculoskeletal system, an increased evaluation may be based on either actual limitation of motion or the functional equivalent of limitation of motion due to less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995) (discussing 38 C.F.R. §§ 4.40 , 4.45).  A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40 ). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment.  Id.   

It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.

Based on the evidence, the Board concludes that a rating in excess of 10 percent is not warranted for either knee’s patellofemoral pain syndrome disability.  The preponderance of the evidence indicates that knee flexion is not limited to 30 degrees, including on repetitive use testing and on active and passive range of motion in non-weight bearing.  Instead, functional flexion of each knee is well beyond 30 degrees.  Weightbearing range of motion is unable to be tested for.  Muscle strength is normal and there is no atrophy.  There is no weakness or incoordination.  This is all shown in the evidence of record, including the VA examination reports from 2010, 2015, and 2018, and it also shows that there are no flare-ups.  The 2018 examiner specifically noted that there are “no flares” after mentioning her knees are worse with prolonged sitting or increased activity.  The 2018 VA examiner significantly, reported that the Veteran reported “no significant change since the last visit.”  In her 2015 VA examination, the Veteran reported intermittent, not constant, knee pain.
There is no more than slight limitation of flexion of the knees, with pain and popping without objective evidence of crepitus on the 2018 examination.  Pain was noted with flexion, extension, and weight bearing; however, the 2018 examiner specifically noted that the Veteran’s range of motion, from 0 to 125 degrees (right) and 0 to 130 degrees (left), did not contribute to functional loss.  The 2015 examiner, who noted slightly better range of motion on the right, and the 2018 examiner both found that “[p]ain noted on exam but does not result in/cause functional loss.”  There was also no additional functional loss or range of motion after 3 repetitions in 2015 and 2018.
The 2010 examiner found that she could stand for 15-30 minutes and could walk 1-3 miles. The 2015 examiner found no limits on her ability to be employed.  The 2018 examiner noted limitations on prolonged sitting and ambulation and activity that required deep knee bending and lifting, but found the Veteran could tolerate mostly sedentary work if allowed to stand and take breaks from sitting. 
Additionally, there is no evidence of limitation of extension, recurrent subluxation or lateral instability, dislocated semilunar cartilage of either knee with frequent episodes of "locking," pain, and effusion into the joint, and/or symptomatic removal of the semilunar cartilage of either knee.  She had full strength and no ankylosis.  The preponderance of the information in the examination reports and the rest of the record does not support this and/or is to the contrary, and these are either denied by the Veteran or not alleged.  
Accordingly, a rating greater than 10 percent is not warranted for either knee’s patellofemoral pain syndrome.  There is no reasonable doubt to be resolved in the Veteran's favor regarding these issues.
Although the benefits appealed for cannot be granted, the Board would like to thank the Veteran for her service.  

 
M. C. GRAHAM
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Lawson, Counsel

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