Case 24034729

S. F. KEANE · 2024 · Case ID: 24034729

MIXED

Summary

The veteran, who served in the Army from September 1976 to September 1979 and again from January 2003 to June 2004, appeals the denial of higher ratings for several service-connected conditions and the effective dates assigned to some grants. The Board granted an earlier effective date of February 24, 2006, for service connection for bilateral hip disabilities, finding the Veteran's February 2006 letter constituted an intent to file. The Board denied an earlier effective date for the increased rating for sinusitis, finding the earliest ascertainable date for worsening symptoms was May 5, 2017, based on a DBQ. The Board denied increased ratings for right shoulder disability, right and left knee disabilities, and right ankle disability, finding the evidence did not support ratings higher than those already assigned. For the right shoulder, the Board found the Veteran's limitations did not meet the criteria for a 30 percent rating, and a prosthetic replacement was not performed. For the knees, the Board found the evidence did not support ratings higher than 10 percent for limitation of flexion or extension, nor did it support ratings under other diagnostic codes like ankylosis or instability. For the right ankle, the Board applied M21-1 guidance to define moderate limitation and found the Veteran's symptoms did not meet the criteria for a higher rating. The Board also noted the Veteran failed to appear for a scheduled hearing, which was considered withdrawn.

Rationale

Grant of service connection for right hip disability; Effective date of February 24, 2006 established; February 2006 letter considered intent to file

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

09-30 210

Full Decision Text

Citation Nr: 24034729
Decision Date: 12/27/24 Archive Date: 12/27/24

DOCKET NO. 09-30 210
DATE: December 27, 2024

ORDER

Entitlement to an effective date of February 24, 2006 for the grant of service connection for right hip disability is granted, subject to the laws and regulations controlling the award of monetary benefits.

Entitlement to an effective date of February 24, 2006 for the grant of service connection for left hip disability is granted, subject to the laws and regulations controlling the award of monetary benefits.

Entitlement to an effective date prior to May 5, 2017 for the increased 30 percent rating for sinusitis is denied.

Entitlement to a rating higher than 20 percent for right shoulder degenerative joint disease (right shoulder disability) is denied.

Entitlement to a rating higher than 10 percent, minus any period of a total (100 percent) disability rating, for right knee degenerative joint disease (right knee disability) is denied.

Entitlement to a rating higher than 10 percent, minus any period of a total (100 percent) disability rating, for left knee degenerative joint disease (left knee disability) is denied.

Entitlement to a rating higher than 10 percent for right ankle osteoarthritis (right ankle disability) is denied.

FINDINGS OF FACT

1. The Veteran filed an intent to file a claim for service connection for right hip disability February 24, 2006, and submitted a formal supplemental claim within a year of submission of the intent to file a claim.

2. The Veteran filed an intent to file a claim for service connection for left hip disability February 24, 2006, and submitted a formal supplemental claim within a year of submission of the intent to file a claim.

3. May 5, 2017 is the earliest date as of which it is ascertainable that an increase in the severity of the Veteran's sinusitis had occurred.

4. The Veteran's right shoulder disability symptomatology, which is the Veteran's major joint, did not more nearly approximate motion is limited to midway between the side and shoulder level, to include with flare-ups and repeated use over time.

5. Minus the period of a temporary 100 percent rating from June 13, 2012 to November 1, 2012, the Veteran's right knee disability symptomatology does not more nearly approximate flexion limited to 30 degrees.

6. Minus the period of a temporary 100 percent rating from June 13, 2012 to November 1, 2012, the Veteran's left knee disability symptomatology does not more nearly approximate flexion limited to 30 degrees.

7. The Veteran's right ankle disability symptomatology does not more nearly approximate marked limitation of motion of the right ankle, and there is no evidence of ankylosis, os calcis, astragalus, or astragalectomy.

CONCLUSIONS OF LAW

1. The criteria for an effective date of February 24, 2006 for the grant of service connection for right hip disability, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

2. The criteria for an effective date of February 24, 2006 for the grant of service connection for left hip disability, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

3. The criteria for an effective date prior to May 5, 2017 for the grant of an increased rating of 30 percent for sinusitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

4. The criteria for an increased rating higher than 20 percent for right shoulder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, diagnostic code (DC) 5201.

5. The criteria for a rating higher than 10 percent, minus the period of a temporary 100 percent rating from June 13, 2012 to November 1, 2012, for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3
§§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, diagnostic code (DC) 5201.

5. The criteria for a rating higher than 10 percent, minus the period of a temporary 100 percent rating from June 13, 2012 to November 1, 2012, for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.

6. The criteria for a rating higher than 10 percent, minus the period of a temporary 100 percent rating from June 13, 2012 to November 1, 2012, for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.

7. The criteria for a disability rating higher than 10 percent for right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1976 to September 1979, and January 2003 to June 2004.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted a 20 percent rating for right shoulder disability, 10 percent rating for right ankle disability, a 10 percent rating for right and left knee disabilities from February 22, 2007, denied service connection for left and right hip disabilities, and neck disability, and reduced a rating for sinusitis from 10 percent to noncompensable.

In January 2008, the Veteran filed a notice of disagreement, and in February 2009, the Veteran testified at a travel Board hearing before a Veterans Law Judge who is no longer employed by the Board. A copy of the transcript is of record.

In August 2009, the Veteran was issued a statement of the case and perfected his appeal to the Board.

In a June 2014 rating decision, the RO, among other things, granted a temporary total (100 percent) rating from June 13, 2012 to November 1, 2012 for both right and left knee degenerative joint disease.

In August 2016, the Board remanded the Veteran's claims for VA examinations, additional medical records, and to clarify the Veteran's request for a hearing.

In a November 2017 rating decision, the RO, among other things, granted service connection for both right and left hip bursitis, evaluating them each as 10 percent disabling from May 5, 2017, and granted a rating increase for sinusitis, evaluating it as 30 percent disabling from May 5, 2017, creating a staged rating.

In November 2017, the RO continued its denial of service connection for neck disability, an effective date earlier than May 5, 2017 for service connection for right and left hip bursitis, a rating higher than 20 percent for right knee arthritis, left knee arthritis, right shoulder disability, and right ankle disability prior to February 22, 2007, a rating higher than 10 percent for right and left knee disability from February 22, 2007 to June 12, 2012, and from November 1, 2012, a rating higher than 20 percent for right shoulder disability from February 22, 2007, a rating higher than 10 percent for right ankle disability from February 22, 2007, a rating higher than 10 percent for sinusitis prior to July 13, 2007, and higher than 30 percent from May 5, 201
ursitis, a rating higher than 20 percent for right knee arthritis, left knee arthritis, right shoulder disability, and right ankle disability prior to February 22, 2007, a rating higher than 10 percent for right and left knee disability from February 22, 2007 to June 12, 2012, and from November 1, 2012, a rating higher than 20 percent for right shoulder disability from February 22, 2007, a rating higher than 10 percent for right ankle disability from February 22, 2007, a rating higher than 10 percent for sinusitis prior to July 13, 2007, and higher than 30 percent from May 5, 2017, and found the rating reduction from 10 percent to noncompensable for sinusitis from July 13, 2007 proper, notifying the Veteran in a supplemental statement of the case.

In February 2018, the Veteran requested a Board hearing which was scheduled for June 30, 2023. However, the Veteran failed to appear without good cause shown. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d).

In September 2023, the Board denied a rating higher than 20 percent for right shoulder disability from February 22, 2007, a rating higher than 10 percent for right ankle disability, a rating higher than 10 percent minus any period of a total 100 percent disability rating for right and left knee disability, granted an effective date of July 13, 2006 for grant of service connection for right and left hip disabilities, a 10 percent rating for right and left knee disabilities from June 29, 2004 to February 22, 2007, a 10 percent rating for right ankle disability from June 29, 2004 to February 22, 2007, a 20 percent rating for right shoulder disability from June 29, 2004 to February 22, 2007, restored a 10 percent rating for sinusitis from July 13, 2007 to May 5, 2017, denied a rating higher than 10 percent prior to May 5, 2017, and higher than 30 percent from May 5, 2017 for sinusitis, and remanded service connection for neck disability.

The Veteran appealed the Board decision to the Court of Appeals for Veteran's Claims (Court) which in July 2024 granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating, and remanding the part of the Board's September 2023 decision which denied a higher rating from June 20, 2004 for right shoulder disability, a rating higher than 10 percent for right ankle disability, a rating higher than 10 percent, minus any period of a total disability rating for left knee disability, a rating higher than 10 percent prior to May 5, 2017, and higher than 30 percent thereafter for sinusitis, and an effective date prior to July 13, 2006 for grant of service connection for right and left hip disabilities. The Court left undisturbed the grant of an effective date of July 13, 2006 for right and left hip disability, a 10 percent rating for both right and left knee disability, a 10 percent rating for right ankle disability, and a 20 percent rating for right shoulder disability, each from June 29, 2004, to February 22, 2007, and the restoration of a 10 percent rating for the period from July 13, 2007 to May 5, 2017 for sinusitis. The Court found that the Board failed to address a July 3, 2023 email from VA regarding the status of the Veteran's hearing, specifically whether he failed to appear or provided good cause for missing the hearing; failed to address evidence that informal claims for right and left hip disabilities were filed prior to July 13, 2006; failed to address whether an increased rating was warranted for prosthetic shoulder replacements under DC 5051 as the Veteran had undergone a total shoulder joint replacement in 2003; failed to address whether additional functional limitation due to repetitive use or flare-ups of the right shoulder more nearly approximates limitation to midway between side and shoulder level as required for a 30 percent rating; failed to provide clear definitions of the subjective terms in the pre-amended rating criteria for right ankle disability; failed to address the applicability of DC 5055 for the Veteran's right and left knee disabilities; and failed to provide adequate reasons and bases as to why an effective date of May 5, 2017 for an increased rating for sinusitis
13, 2006; failed to address whether an increased rating was warranted for prosthetic shoulder replacements under DC 5051 as the Veteran had undergone a total shoulder joint replacement in 2003; failed to address whether additional functional limitation due to repetitive use or flare-ups of the right shoulder more nearly approximates limitation to midway between side and shoulder level as required for a 30 percent rating; failed to provide clear definitions of the subjective terms in the pre-amended rating criteria for right ankle disability; failed to address the applicability of DC 5055 for the Veteran's right and left knee disabilities; and failed to provide adequate reasons and bases as to why an effective date of May 5, 2017 for an increased rating for sinusitis was assigned.

The Board notes that the Veteran failed to appear at the Board hearing which was scheduled for June 30, 2023. The Veteran did not provide good cause for failing to appear but was notified in a July 3, 2023 email that the appeal continued to be in the Hearing to be Rescheduled status. It appears that this notification was provided in error shortly following the date the Veteran failed to appear, as the record is void of any communication from the Veteran or his representative via letter, email, or telephone regarding whether he showed good cause for missing the hearing or intended to reschedule the hearing. The Veteran has also not otherwise indicated since the June 30, 2023 date of the scheduled Board hearing that he wished to reschedule his hearing. Therefore, the Board finds that the Veteran's request for a hearing has been withdrawn without any intention to reschedule.

EARLIER EFFECTIVE DATE

1. Right and Left Hip Disability

In an August 2024 brief, the Veteran's representative indicated that an effective date earlier than July 13, 2006 for the grant of service connection for bilateral hip disability should have been considered by the Board. The representative specifically noted a December 12, 2002 VA Form 21-4142 wherein the Veteran noted lower back and hip aggravated by the Army Physical Fitness Test, and a September 17, 2005 letter in which the Veteran wrote he was having problems with his hips. The representative also noted a November 7, 2005 letter wherein the Veteran stated he was requesting medical appointments for both hips, with the problem mostly on the left side. The representative indicated that the Veteran also discussed hip issues in January 13, 2006, February 18, 2006, and February 24, 2006 letters. He additionally reported that the Veteran listed one of his disagreements with his VA benefits as relating to left hip pain on his June 22, 2006 VA Form 9.

Generally, the effective date for a grant of service connection on an original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i).

Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). This amendment applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686.

Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or their representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

The currently assigned effective date of July 13, 2006, the date requested by the Veteran and his representative in a January 2018 Informal Hearing Presentation, is based on the date of the claim for an increased rating for the date of the Veteran's claim for service connection for right and left hip disabilities and a higher rating for left knee disability.

During his February 2009 Board hearing, the Veteran testified that he has extreme pain in his left hip with the doctor telling him that he had arthritis
the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015).

During his February 2009 Board hearing, the Veteran testified that he has extreme pain in his left hip with the doctor telling him that he had arthritis. The Veteran reported that this problem with his hips began around the same time as his knee issues. He testified that his physician told him that the shifting of his knees could cause wear and tear on his hips.

November 1982 service treatment records reflect that the Veteran complained of pain radiating to his left hip.

In a September 2005 letter, the Veteran reported problems with his hips.

A November 2005 letter reflects that the Veteran reported a problem in both hips but more so in his left hip. He stated that his hips have been hurting since being exposed to cold weather in Ft. Dix.

A January 2006 letter indicates that the Veteran reported a problem with his hips.

In a February 2006 letter, the Veteran stated that he was requesting medical review board for hip problems.

June 2006 medical treatment records reflects that the Veteran was treated for left hip osteoarthritis.

February 2015 medical treatment records indicate that the Veteran has a diagnosis of osteoarthritis of the left hip.

In a May 2017 disability benefits questionnaire (DBQ), the physician opined that it is at least as likely as not (at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral hip bursitis is related to his chronic knee conditions, explaining that chronic knee pain is likely to cause alteration of weight bearing and this compensation over time is likely to cause inflammation of the bursa sac in the hips resulting in bursitis. The physician also opined that the Veteran's hip disability was less likely than not (less than a 50 percent probability) due to service as the service treatment records do not indicate evidence of chronic or recurrent left hip complaints or a diagnosis or treatment of left hip pain. There is thus insufficient medical evidence in the service treatment records to establish that the Veteran's current left hip bursitis was incurred in or is otherwise related to the Veteran's service. The DBQ indicated that the Veteran had a diagnosis of bilateral hip bursitis with the Veteran reporting onset of symptoms in January or February 2004 in basic training. The Veteran indicated that the disability was due to performing basic training drills in cold weather without rain gear, and road marches in service.

The Veteran and his representative contend that an effective date earlier than July 13, 2006 is warranted for the grant of service connection for bilateral hip disability. The Board previously granted the earlier effective date of July 13, 2006 based on the date of the Veteran's initial informal claim for service connection for bilateral hip disability and a higher rating for left knee disability as VA granted service connection for right and left hip disability secondary to the Veteran's left knee disability, therefore right and left hip disabilities are a "complication" within the scope of the appeal of the left knee rating under Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021).

However, the Board finds that an effective date of February 24, 2006 is warranted for the grant of service connection for bilateral hip disability. The evidence of record reflects that the Veteran submitted a form VA 21-4138 Statement in Support of Claim July 13, 2006, wherein he filed a claim for right and left hip disability, as well as a higher rating for his left knee disability within a year of his February 24, 2006 informal claim for service connection for bilateral hip disability. While the evidence reflects that the Veteran was treated for hip pain during service, and reported hip problems in September 2005, November 2005, and January 2006 letters, he did not indicate an intent to apply for a benefit under laws administered by VA. Therefore, the letters may not be considered informal claims.

Alternately, the February 24, 2006 letter reflects that the Veteran specifically noted that he was requesting a medical review board for his hip problems and stated that he should receive VA benefits. Considering the pro-claimant nature of Veterans law, the Board resolves any discrepancy regarding its interpretation of the February 24, 2006 letter in the light most favorable to the Veteran and finds
bilateral hip disability. While the evidence reflects that the Veteran was treated for hip pain during service, and reported hip problems in September 2005, November 2005, and January 2006 letters, he did not indicate an intent to apply for a benefit under laws administered by VA. Therefore, the letters may not be considered informal claims.

Alternately, the February 24, 2006 letter reflects that the Veteran specifically noted that he was requesting a medical review board for his hip problems and stated that he should receive VA benefits. Considering the pro-claimant nature of Veterans law, the Board resolves any discrepancy regarding its interpretation of the February 24, 2006 letter in the light most favorable to the Veteran and finds that the Veteran intended to file a claim for benefits under the laws administered by VA in his February 24, 2006 letter, and subsequently filed a formal claim on an appropriate claims form within one year of receipt of the intent to file. VA thus considers the formal claim to have been filed as of the date of the February 24, 2006 intent to file.

Based on the evidence of record, an earlier effective date of February 24, 2006, the date of the intent to file a claim for service connection, is warranted for the grant of service connection for right and left hip disabilities.

2. Sinusitis

Per the JMPR, the Veteran and his representative contend that the Board failed to provide adequate reasons and bases as to why an effective date of May 5, 2017 for an increased rating for sinusitis was assigned.

The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically, as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o).

The United States Court of Appeals for Veterans Claims (Court) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(3); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1), (2).

The Veteran's sinusitis is now currently rated 10 percent disabling from June 29, 2004, noncompensable from July 13, 2007, and 30 percent disabling from May 5, 2017 under DC 6513, applicable to chronic maxillary sinusitis set forth in a General Rating Formula under 38 C.F.R. § 4.97. Under that formula, a noncompensable rating is warranted where the sinusitis is detected by X-ray only, a 10 percent rating is warranted for one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment; or three to six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes of sinusitis per year characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.

A May 2017 DBQ reflects that the Veteran reported that his sinusitis has worsened with nasal drainage, surgeries, and a tonsillectomy. The Veteran did not report any symptoms or signs attributable to chronic sinusitis, but reported 7 or more non-incapacitating episodes of sinus
, and purulent discharge or crusting. A 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or for near-constant sinusitis characterized by headaches, pain, and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. A Note to the General Rating Formula provides that an incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician.

As set forth above, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. The Board finds that the May 5, 2017 date for the award of an increased 30 percent rating for sinusitis is the appropriate effective date. While the Veteran filed a claim for a rating increase December 19, 2016, the evidence of record demonstrates a factually ascertainable increase May 5, 2017. The Veteran reported in his May 5, 2017 DBQ that his sinusitis had worsened with 7 or more non-incapacitating episodes of sinusitis. There was no evidence prior to the May 5, 2017 DBQ which reflects that the Veteran's sinusitis had worsened. Therefore, an effective date of May 5, 2017 is the appropriate effective date for the increased 30 percent rating for sinusitis.

The Board recognizes that the Veteran may have been experiencing increased sinusitis symptoms prior to May 5, 2017. However, the effective date of an award of an increased rating is assigned based on the date that an increase in the disability is ascertainable by the lay or medical evidence of record, which in this case was the date of the May 5, 2017 DBQ.

Based on the foregoing, an effective date of May 5, 2017 for the increased 30 percent rating for sinusitis is proper as the earliest evidence of record as to when it is factually ascertainable that the Veteran's sinusitis disability had worsened is in the May 5, 2017 DBQ. As the evidence is neither evenly balanced nor approximately so with regard to an effective date earlier than May 5,2017, the benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

INCREASED RATING

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. 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.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based
4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

When evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis, i.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 28-29 (2021).

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.

1. Right Shoulder Disability

The Veteran testified that his right shoulder disability affected his ability to do any heavy lifting or reach overhead. He indicated that he had acromioclavicular (AC) joint surgery and has since developed tendonitis. He stated when his shoulder hurts really bad, he cannot really do anything with it, indicating that he can only raise it to about his shoulders.

In a May 2015 statement, the Veteran reported that reported that he began to have right shoulder pain in February 2003 while doing push-ups, and underwent surgery July 29, 2003 for torn bursa in the right shoulder.

The Veteran's right shoulder disability is rated 20 percent disabling under DC 5201-5010. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27
when his shoulder hurts really bad, he cannot really do anything with it, indicating that he can only raise it to about his shoulders.

The Veteran's right shoulder disability is rated 20 percent disabling under DC 5201-5010. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed.

Under DC 5201, limitation of the arm at the shoulder level warrants a 20 evaluation whether it is the major or minor extremity. When motion is limited to midway between the side and shoulder level, a 30 percent evaluation is warranted for the major extremity. When motion is limited to 25 degrees from the side, a 40 percent evaluation is warranted for the major extremity.

Other potentially relevant diagnostic codes include DC 5200 (ankylosis of the scapulohumeral articulation), DC 5202 (impairment of the humerus), DC 5203 (other impairment of the clavicle or scapula), and DC 5203 (impairment of function of the contiguous joint). 38 C.F.R. § 4.71a.

DC 5200, ankylosis of the scapulohumeral articulation is rated as follows: favorable ankylosis of the scapulohumeral articulation with abduction to 60 degrees, can reach mouth and head warrants a 30 percent rating for the major joint. Intermediate between favorable and unfavorable warrants a 40 percent rating for the major joint. Unfavorable, abduction limited to 25 degrees from side warrants a maximum 50 percent rating for the major joint. 38 C.F.R. § 4.71a, DC 5200. A note to DC 5200 states that the scapula and humerus move as one piece.

Under DC 5202, impairment of the humerus in the major extremity is rated as follows: loss of head (flail shoulder) (80 percent); nonunion (false flail joint) (60 percent); fibrous union (50 percent); recurrent dislocation at scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent); recurrent dislocation at scapulohumeral with infrequent episodes and guarding of movement only at shoulder level (20 percent); malunion with marked deformity (30 percent); and malunion with moderate deformity (20 percent).

Normal flexion (forward elevation of the arm) and normal abduction (movement of the arm away from the side) of the shoulder are to 180 degrees. Normal internal rotation and external rotations of the shoulder are to 90 degrees. 38 C.F.R. § 4.71, Plate 1.

DC 5203, impairment of the clavicle or scapula in the major extremity is rated as follows: dislocation (20 percent); nonunion with loose movement (20 percent); nonunion without loose movement (10 percent); and malunion (10 percent).

As discussed, the JMPR reflects that the Veteran and his representative contend that the Board failed to address whether an increased rating was warranted for prosthetic shoulder replacements under DC 5051 as the Veteran had undergone a total shoulder joint replacement in 2003; and whether additional functional limitation due to repetitive use or flare-ups of the right shoulder more nearly approximates limitation to midway between side and shoulder level as required for a 30 percent rating.

DC 5051 pertains to prosthetic replacement of the shoulder joint. 38 C.F.R. § 4.71 (a), DC 5051. It provides, with respect to the major extremity, a 100 percent rating for one year following implantation of the prosthesis. Following this one-year period, a minimum 30 percent rating is warranted for prosthetic replacement of the shoulder joint with intermediate degrees of residual weakness, pain or limitation of motion, and a 60 percent rating is warranted for prosthetic replacement of the shoulder joint with chronic residuals consisting of severe, painful motion or weakness.

Here, the evidence of record indicates that the Veteran has not undergone a prosthetic replacement of the shoulder joint. The Veteran's July 2003 service treatment records reflect that the Veteran underwent a right shoulder open subacromial surgery which
71 (a), DC 5051. It provides, with respect to the major extremity, a 100 percent rating for one year following implantation of the prosthesis. Following this one-year period, a minimum 30 percent rating is warranted for prosthetic replacement of the shoulder joint with intermediate degrees of residual weakness, pain or limitation of motion, and a 60 percent rating is warranted for prosthetic replacement of the shoulder joint with chronic residuals consisting of severe, painful motion or weakness.

Here, the evidence of record indicates that the Veteran has not undergone a prosthetic replacement of the shoulder joint. The Veteran's July 2003 service treatment records reflect that the Veteran underwent a right shoulder open subacromial surgery which entails small amounts of acromion bone being removed to increase the available space for the joint to function without compression. See www.arlingtonortho.com/conditions/shoulder/shoulder-shoulder-impingement-surgery/. Total shoulder replacement involves replacing a damaged shoulder joint with implants. www.mayoclinic.org/tests-procedures/shoulder-replacement/about/pac-20519121. As the Veteran's July 2003 surgery did not involve replacing his damaged shoulder joint with implants, he did not undergo total shoulder replacement and DC 5051 is not applicable.

An October 2008 examination report indicates that the Veteran reported stiffness, weakness, swelling, redness, giving way, lack of endurance, locking, and fatigability in his right shoulder, but he did not have heat or dislocation. He described the pain level as a 10 out of 10, and stated that the pain was spontaneous, but was elicited by physical activity and stress, and relieved with over the counter (OTC) medication and rest. The examiner noted that the Veteran reported that reaching over his head and lifting is difficult, making it stressful at work not being able to do what is asked due to the pain. There was redness, but no signs of edema, effusion, weakness, redness, heat, guarding movement, and no subluxation. Flexion was to 180 degrees, abduction to 180 degrees, external and internal rotation each to 90 degrees. Joint function was limited by pain after repetitive use, but there was no additional limitation in degree.

A May 2017 DBQ reflects a diagnosis of right shoulder degenerative joint disease, with the Veteran reporting pain and difficulty lifting overhead with flare-ups. The DBQ indicates that the Veteran is right hand dominant. Flexion was to 135 degrees, abduction to 120 degrees, external rotation to 50 degrees, and internal rotation to 75 degrees. Pain was noted with each range of motion, there was evidence of pain with weight bearing and evidence of crepitus, but no localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner reported no additional loss of function or range of motion with 3 repetitions or with repetitive use over time. The examiner also noted that the examination was administered during a flare-up. There was no muscle atrophy, no reduction in muscle strength, and no ankylosis noted. The examiner noted that there was no shoulder instability, dislocation, or labral pathology suspected, and no rotator cuff condition suspected. The DBQ reflects that no clavicle scapula, AC joint or sternoclavicular joint condition is suspected, the Veteran did not have loss of head, nonunion, or fibrous union of the humerus, and did not have malunion of the humerus with moderate or marked deformity. The examiner reported objective evidence of pain on passive range of motion testing and with non-weight bearing testing.

A separate May 2017 DBQ reflects that the Veteran reported pain and difficulty lifting overhead with flare-ups. Flexion was to 160 degrees, abduction to 130 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees. Pain was noted with each range of motion, there was evidence of pain with weight bearing and evidence of crepitus, but no localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner reported no additional loss of function or range of motion with 3 repetitions or with repetitive use over time. The examiner also noted that the examination was not administered during a flare-up, but indicated that pain significantly limits functional ability with flare-ups, described in terms of range of motion as flexion to 160 degrees, abduction to 140 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees. There was no muscle atrophy, no reduction in muscle strength, and no ankylosis noted. The examiner noted that there was no shoulder instability, dislocation, or labral pathology suspected, and no rot
no localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner reported no additional loss of function or range of motion with 3 repetitions or with repetitive use over time. The examiner also noted that the examination was not administered during a flare-up, but indicated that pain significantly limits functional ability with flare-ups, described in terms of range of motion as flexion to 160 degrees, abduction to 140 degrees, external rotation to 90 degrees, and internal rotation to 70 degrees. There was no muscle atrophy, no reduction in muscle strength, and no ankylosis noted. The examiner noted that there was no shoulder instability, dislocation, or labral pathology suspected, and no rotator cuff condition suspected. The DBQ reflects that no clavicle scapula, AC joint or sternoclavicular joint condition is suspected, the Veteran did not have loss of head, nonunion, or fibrous union of the humerus, and did not have malunion of the humerus with moderate or marked deformity. The examiner reported objective evidence of pain on passive range of motion testing and with non-weight bearing testing.

Based on the evidence above, the Board finds that a rating higher than 20 percent is not warranted for right shoulder disability. As previously noted, the Veteran's right shoulder is considered his major joint for rating purposes as he is right handed. While the Veteran and representative contend in the JMPR that the Board failed to address whether additional functional limitation due to repetitive use or flare-ups of the right shoulder more nearly approximates limitation to midway between side and shoulder level as required for a 30 percent rating, the noted DBQs and examination report reflect right shoulder limitation of motion, including with repeated use over time and during flare-ups, of flexion between 180 degrees and 135 degrees, and abduction between 180 degrees and 120 degrees. In other words, the May 2017 examiner considered range of motion limitations during a flare-up and addressed additional loss with 3 repetitions and with repetitive use over time, in accordance with the JMPR. These limitations of motion are primarily at or above shoulder level. The Board has also considered the Veteran's statements concerning the severity of his disability including his reports of pain due to which he is unable to reach overhead or do any heavy lifting. However, the examiners reviewed the Veteran's file and considered his statements regarding functional limitations, and noted that even considering repetitive use and flare-ups, the Veteran's right shoulder functional limitation did not more nearly approximate limitation to midway between the side and shoulder level as contemplated by a higher 30 percent rating under DC 5201.

While the Veteran reported stiffness, weakness, swelling, giving way, fatigability, and locking, the May 2017 DBQs indicated that there was no reduction in muscle strength, ankylosis, shoulder instability or rotator cuff condition. The DBQs also reflect no clavicle scapula, AC joint or sternoclavicular joint condition, loss of head, nonunion, or fibrous union of the humerus, and indicated that the Veteran did not have malunion of the humerus with moderate or marked deformity, and the Veteran has not provided evidence to the contrary. Therefore, separate disabilities ratings under DCs 5200, 5202, and 5203 are not for application.

The Veteran contends that his right shoulder disability causes him stress at work as he cannot always complete tasks asked of him. The Board has considered whether referral for an extraschedular rating is thus warranted in this case under 38 C.F.R. § 3.321 (b)(1).

An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1).

Here, referral to the Director of Compensation Service for extraschedular rating consideration is not warranted. While the Veteran stated that he suffers from stress due to not being able to complete work tasks which is a symptomatology not reasonably described or contemplated by the diagnostic criteria for right shoulder disability, the evidence of record does not indicate that the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. In fact, there is no evidence of record which suggests that the Veteran has ever received
-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1).

Here, referral to the Director of Compensation Service for extraschedular rating consideration is not warranted. While the Veteran stated that he suffers from stress due to not being able to complete work tasks which is a symptomatology not reasonably described or contemplated by the diagnostic criteria for right shoulder disability, the evidence of record does not indicate that the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. In fact, there is no evidence of record which suggests that the Veteran has ever received treatment for or been hospitalized due to stress induced by his right shoulder disability. As the Veteran's disability picture due to stress does not exhibit other factors such as marked interference with employment or frequent periods of hospitalization, referral to the Director of Compensation service for extraschedular rating consideration is not warranted.

For the foregoing reasons, the evidence of record reflects that a rating higher than 20 percent for right shoulder disability is not warranted.

2. Right and Left Knee Disability

The Veteran testified that he feels the type of pain in his left knee where it wants to "give way". He stated that when he puts down his leg, it will "give" and he catches himself.

The Veteran's right knee and left knee degenerative joint disease are both rated 10 percent disabling from February 22, 2007 with the exception of a temporary total (100 percent) disability rating for the period from June 13, 2012 to November 1, 2012 under DC 5260-5010, and DC 5010-5260 respectively.

The Board has also considered other potentially relevant diagnostic codes. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

DC 5256 assigns a 30 percent evaluation for knee ankylosis with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees; a 40 percent rating for knee ankylosis in flexion between 10 and 20 degrees; a 50 percent rating for knee ankylosis in flexion between 20 and 45 degrees; and a 60 percent rating for extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more.

Prior to February 7, 2021,
both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to February 7, 2021, DC 5257 assigns a 10 percent evaluation for slight recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

For context, "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited December 20, 2024).

"Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited December 20, 2024).

"Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited December 20, 2024).

As of February 7, 2021, under the amended criteria, DC 5257 assigns a 10 percent rating for recurrent subluxation or instability for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device, or bracing for ambulation; a 20 percent evaluation for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent evaluation for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation.

Under DC 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a.

Under DC 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a. However, as the rating for the Veteran's torn meniscus will be addressed in a separate Board decision, the Board will not address it below.

Under DC 5260, limitation of flexion of the leg is noncompensable where flexion is limited to 60 degrees. A 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a.

Under DC 5261, limitation of extension of the leg, a noncompensable rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40
60 degrees. A 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a.

Under DC 5261, limitation of extension of the leg, a noncompensable rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a.

The Board also notes that the Veteran and his representative indicated in the JMPR that DC 5055 should be considered for the Veteran's right and left knee disabilities.

The current version of DC 5055 amended effective February 7, 2021 pertains to prosthetic replacement of the knee joint, and provides for a 100 percent rating for 4 months following implantation of prosthesis, and a minimum 30 percent rating following that 4 month period. 38 C.F.R. § 4.71a, DC 5055. Where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the rating criteria provide that the disability is to be rated by analogy to DCs 5256, 5261 or 5262.

Under pre-amended DC 5055, a 100 percent disability rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability. A 30 percent rating is the minimum possible rating assigned following that one year period. A 60 percent rating is warranted for a total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion (a level of disability in between those contemplated by the 30 and 60 percent ratings) are to be rated by analogy to DCs 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055.

VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned.

In VAOPGCPREC 9-98, General Counsel also clarified, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261.

In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004. Id. Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. The limitation of flexion and extension must be compensable in both planes in order to warrant separate ratings. Id.

There is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 or 5261 and a meniscal Diagnostic Code, i.e., Diagnostic Codes
has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004. Id. Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. The limitation of flexion and extension must be compensable in both planes in order to warrant separate ratings. Id.

There is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 or 5261 and a meniscal Diagnostic Code, i.e., Diagnostic Codes 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017).

An October 2008 examination report indicates that the Veteran suffers from symptoms of weakness, stiffness, swelling, lack of endurance, and fatigability in the right knee. He did not report heat, redness, giving way, locking, or dislocation, but stated that the pain is constant which travels up and down his right leg and hip. The examiner noted that the pain level is an 8 out of 10, and is elicited by physical activity and stress, and is relieved by rest, OTC medications, and an ice pack. The Veteran also reported vomiting due to intense pain, use of OTC knee braces, and stated that the Postmaster complains that he does not get his work done on a daily basis. The examiner noted tenderness and crepitus, but no signs of edema effusion, weakness, redness, heat, guarding of movement, and no subluxation. Flexion was to 140 degrees, and extension was to 0 degrees. The examination report indicates that joint function is additionally limited by pain after repetitive use, but there is no additional limitation in degree. Ligament stability and meniscus tests were reported to be within normal limits.

An October 2008 examination report reflects that the Veteran has a history of arthroscopic surgery on the left knee for a torn meniscus. The Veteran reported symptoms of weakness, stiffness, swelling, heat, redness, giving way, lack of endurance and fatigability. He did not report locking and dislocation, but did report constant left knee pain which travels up and down the left leg and hip, described as an 8 out of 10 in severity. The pain is elicited by physical activity and stress, and relieved with OTC medication. The Veteran reported use of OTC knee braces. The examiner noted no signs of edema, effusion, weakness, redness, heat, guarding of movement, or subluxation, but there was crepitus noted. Flexion was to 140 degrees, and extension was to 0 degrees. The examination report indicates that joint function is additionally limited by pain after repetitive use, but there is no additional limitation in degree. Ligament stability and meniscus tests were reported to be within normal limits.

In a May 2017 DBQ, the examiner noted diagnoses of left knee degenerative joint disease post chondroplasty, and right knee degenerative joint disease post chondroplasty and meniscectomy. The Veteran described knee flare-ups as constant pain, and indicated that his knees hurt badly when walking, standing, bending, and using stairs. Right knee flexion was to 90 degrees, extension to 0 degrees, left knee flexion was to 115 degrees, and extension to 0 degrees, with pain noted with each range of motion, evidence of pain with weight bearing, evidence of crepitus, but no localized tenderness or pain on palpation of the joint or associated soft tissue in either knee. No additional loss of range of motion or function was noted with 3 repetitions or repetitive use testing, and the DBQ was conducted during a flare-up. There was no reduction in muscle strength, no muscle atrophy, and no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability testing indicated that there was no joint instability in either knee. The Veteran had not had recurrent patellar dislocation, shin splints, or any other tibial or fibular impairment, but the examiner noted that the Veteran had had a meniscectomy of the right knee. The DBQ reflects that the Veteran had reduced range of motion following his meniscectomy and chondroplasty, and indicated that he used knee braces. The examiner noted pain with passive range of motion and on non-weight bearing.

A May 2017 private treatment record indicates that the Veteran's left knee
ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion, and joint stability testing indicated that there was no joint instability in either knee. The Veteran had not had recurrent patellar dislocation, shin splints, or any other tibial or fibular impairment, but the examiner noted that the Veteran had had a meniscectomy of the right knee. The DBQ reflects that the Veteran had reduced range of motion following his meniscectomy and chondroplasty, and indicated that he used knee braces. The examiner noted pain with passive range of motion and on non-weight bearing.

A May 2017 private treatment record indicates that the Veteran's left knee extension was to 0 degrees, with flexion to 110 degrees, and right knee extension to 0 degrees with flexion to 120 degrees. There was no significant laxity noted in either leg, and hip range of motion was full, painless, and stable.

The Board notes that DC 5055 is not applicable for the Veteran's right or left knee disability as the Veteran has not undergone a total knee replacement. The Veteran is currently in receipt of a temporary 100 percent rating from June 13, 2012, the date that he underwent a right knee arthroscopy, partial medial meniscectomy, and microfracture as reflected in June 2012 medical treatment records. The evidence does not reflect that the Veteran under a total knee replacement. As the evidence of record reflects that the Veteran has not undergone a total knee replacement, a rating under DC 5055 is not for application.

Minus the period from June 13, 2012 to November 1, 2012 during which the Veteran has a temporary 100 percent rating for both right and left knee disability, a rating higher than 10 percent for right and left knee disability is not warranted under DC 5010-5260. In this regard, the weight of the evidence shows that even considering limitation of flexion with repetitive use testing and during flare-ups, the Veteran's left and right knee disability symptomatology was not shown to be so disabling as to actually, or effectively, result in limitation of flexion to 30 degrees or less. The previously discussed DBQs and examination reports reflect right knee flexion to between 90 and 140 degrees, and left knee flexion to between 110 and 140 degrees, to include with repetitive use, and during flare-ups. Thus, the evidence of record reflects that the Veteran's right and left knee limitation of flexion does not more nearly approximate flexion limited to 30 degrees, and a disability rating higher than 10 percent is not warranted for either the right or left knee disability, minus any period of a temporary total disability rating, under DC 5260.

The Board finds that a separate rating for right or left knee limitation of extension is not warranted as the DBQs and examination reports consistently reflect extension in both knees to 0 degrees, to include during flare-ups and with repetitive use testing. There is no additional evidence of record that reflects, and the Veteran does not otherwise contend, that either his right or left knee disability symptomatology more nearly approximates flexion limited to 5 degrees. Therefore, a separate rating for right and left knee limitation of extension is not warranted under DC 5261 at any time during the period on appeal.

The May 2017 DBQ reflects that the Veteran's right and left knee disability symptomatology does not include ankylosis of the knee. Additionally, the evidence does not indicate, and the Veteran does not otherwise contend, that his right and left knee disability symptomatology more nearly approximates ankylosis as the Veteran has been able to perform range of motion testing. Therefore, a separate rating under DC 5256 is not warranted.

While the Veteran reported stiffness, swelling and "giving way" in the left knee in his October 2008 examination report, his joint stability tests have consistently been within normal limits in both knees as reported in his May 2017 DBQ. The Board thus finds that the consistent reporting of normal joint stability tests outweighs the contention that the left knee "gives way" as the examiner provided the findings following a thorough examination, and based the findings on an accurate characterization of the evidence of record. Additionally, the Veteran reported use of OTC braces, but does not contend, and the evidence does not otherwise reflect, that he suffers from persistent instability, or a ligament tear in either the right or left knee. Therefore, a separate rating for right or left knee instability is not warranted under either the pre-amended or revised DC 5257.

The evidence of record reflects that the Veteran underwent an arthroscopic meniscectomy procedure in both his right and left knee.
The Board thus finds that the consistent reporting of normal joint stability tests outweighs the contention that the left knee "gives way" as the examiner provided the findings following a thorough examination, and based the findings on an accurate characterization of the evidence of record. Additionally, the Veteran reported use of OTC braces, but does not contend, and the evidence does not otherwise reflect, that he suffers from persistent instability, or a ligament tear in either the right or left knee. Therefore, a separate rating for right or left knee instability is not warranted under either the pre-amended or revised DC 5257.

The evidence of record reflects that the Veteran underwent an arthroscopic meniscectomy procedure in both his right and left knee. However, the May 2017 DBQ reflects that the Veteran does not have a history of recurrent subluxation or frequent effusion, and the evidence does not indicate, and the Veteran does not otherwise contend, that his right or left knee disability symptomatology more nearly approximates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, or symptomatic removal of semilunar cartilage. Therefore, separate ratings under DCs 5258, and 5259 are not warranted.

As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)).

For the foregoing reasons, the evidence reflects that the Veteran's right and left knee disability symptomatology, with the exception of the period of a 100 percent rating from June 13, 2012 to November 1, 2012, does not warrant a rating higher than 10 percent under DC 5260, or a separate rating under any other potentially applicable DC. As the evidence is neither evenly balanced nor approximately so as to whether a higher or separate rating is warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

3. Right Ankle Disability

The Veteran's right ankle disability is currently rated 10 percent disabling under DC 5271-5010 from February 22, 2007.

The Board will consider the Veteran's claim under the former criteria prior to February 7, 2021, and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Prior to the regulatory change, under DC 5271, ankle disability with moderate limitation of motion warrants a 10 percent rating. A 20 percent rating is assigned for marked limitation of motion. 38 C.F.R. § 4.71a, DC 5271.

Standard range of ankle dorsiflexion is from 0 to 20 degrees, and plantar flexion from zero to 45 degrees. See 38 C.F.R. § 4.71, Plate II.

Under the pre-February 7, 2021, regulations, "slight," "moderate," and "marked" were not defined in the Rating Schedule.

"Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Dec. 20, 2024).

"Marked," as an adjective, is defined as "having a distinctive or emphasized character
light," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Dec. 20, 2024).

"Marked," as an adjective, is defined as "having a distinctive or emphasized character." Marked, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definition 2 (last visited Dec. 20, 2024).

The Board notes that the M21-1 Adjudication Procedures Manual states that moderate limitation of ankle motion is present when there is less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, while marked limitation of motion is demonstrated when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.3.k. However, the M21-1 is not binding on the Board. See DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). The Board must address relevant provisions of the M21-1 and conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257, 259 (2018). The JMPR reflects that the Veteran and his representative determined that the Board failed to provide clear definitions of the subjective terms in the pre-amended rating criteria for right ankle disability. Here, the Board finds that the guidance provided by the M21-1 Manual is appropriate to define the terms "marked" and "moderate" as the previously utilized definitions are ambiguous and fail to adequately address the severity of the Veteran's disability.

As of February 7, 2021, under the amended criteria for DC 5271, moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion) warrants a 10 percent rating; marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion) warrants a 20 percent rating.

A May 2017 DBQ indicates that the Veteran has a diagnosis of right ankle degenerative joint disease, with the Veteran reporting that his ankle falls inwards when stepping down. Range of motion was normal with dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. The examiner indicated that pain was noted with both ranges of motion, but it did not cause functional loss. There was objective evidence of crepitus, evidence of pain with weight bearing, but no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss of range of motion with 3 repetitions, and the examiner indicated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. While the examination was not conducted during a flare up, the examiner noted that pain weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. There was no reduction in muscle strength noted, no muscle atrophy, and no ankylosis noted. Ankle instability or dislocation was not suspected, the Veteran had not had shin splints, stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus or talus, and the Veteran had not had a talectomy. The Veteran reported use of orthotics for his ankle disability, and the examiner noted pain with passive range of motion testing and in non-weight bearing testing.

The evidence of record reflects that the Veteran's right ankle disability symptomatology does not more nearly approximate marked limitation of motion under either the old or revised criteria. The May 2017 DBQ indicates that the Veteran's right ankle dorsiflexion was at worst to 20 degrees and plantar flexion was at worst to 45 degrees to include with repeated use over time. While the DBQ was not administered during a flare-up, the Veteran did not report suffering from flare-ups of right ankle symptoms
us or talus, and the Veteran had not had a talectomy. The Veteran reported use of orthotics for his ankle disability, and the examiner noted pain with passive range of motion testing and in non-weight bearing testing.

The evidence of record reflects that the Veteran's right ankle disability symptomatology does not more nearly approximate marked limitation of motion under either the old or revised criteria. The May 2017 DBQ indicates that the Veteran's right ankle dorsiflexion was at worst to 20 degrees and plantar flexion was at worst to 45 degrees to include with repeated use over time. While the DBQ was not administered during a flare-up, the Veteran did not report suffering from flare-ups of right ankle symptoms, and the examiner additionally indicated that pain, weakness, and fatigability did not significantly limit functional ability during a flare-up. There is no additional lay or medical evidence which suggests right ankle motion loss that more nearly approximates 5 degrees dorsiflexion or 10 degrees plantar flexion, even when considering functional impairment. Thus, the evidence does not reflect right ankle disability symptoms that more nearly approximate marked rather than moderate limitation of motion of the right ankle.

For the foregoing reasons, a rating higher than 10 percent is not warranted for the Veteran's right ankle disability under DC 5271. As the evidence is neither evenly balanced nor approximately so as to whether a higher or separate rating is warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Maddox, Rolen

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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