Citation Nr: 1002986 Decision Date: 01/20/10 Archive Date: 02/01/10 DOCKET NO. 05-38 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUES 1. Entitlement to service connection for right knee, left hip, bilateral ankle, bilateral leg arthritis and gouty arthritis of the feet, to include as secondary to the service-connected residuals of frostbite of the hands. 2. Entitlement to an evaluation in excess of 10 percent for the service-connected residuals of a left knee meniscectomy (left knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active military duty from July 1947 to June 1950 and from August 1950 to August 1968. In July 2008, the Board of Veterans' Appeals (Board) denied that new and material evidence had been presented to reopen a claim for service connection for osteoarthritis of the right hip, to include as secondary to the service-connected residuals of frostbite of the hands, denied an effective date earlier than January 8, 1991 for the grant of service connection for residuals of frostbite of the hands, and remanded the issues listed on the title page to the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. for additional development. An October 2009 statement from the Veteran raised the issue of entitlement to service connection for sleep apnea, which has not been adjudicated by the RO. Consequently, this issue is referred to the RO for appropriate action. For reasons discussed hereinbelow, the service connection issues on appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT Range of motion of the left knee was no worse than from 10 to 110 degrees on VA examinations in June 2004 and May 2009. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a including Diagnostic Codes 5259, 5260, 5261 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2007). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO initially sent the Veteran a letter in June 2004, prior to adjudication, which informed him of the requirements needed to establish entitlement to an increased evaluation. Additional VCAA letters were sent in August and October 2008. In accordance with the requirements of VCAA, the VA letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims files after the June 2004 and August 2008 letters. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was informed in a March 2006 letter that an effective date would be assigned if his claim was granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. VA examinations were conducted in June 2004 and May 2009. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2009). Law And Regulations Service connection for a left knee disability was granted by March 1969 rating decision and assigned a 10 percent evaluation effective September 1, 1968. A subsequent claim for an evaluation in excess of 10 percent for left knee disability was denied by rating decision in October 2004. The Veteran timely appealed. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2009). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Nevertheless, where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2009) provide for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. Schedular Criteria Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2009). Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2009). Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2009). Diagnostic Code 5261, limitation of extension, of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261; see also 38 C.F.R. § 4.71, Plate II (2009) (showing normal flexion and extension as between 0 degrees and 140 degrees). Analysis It was reported on VA examination in June 2004 that the Veteran used a cane but could walk without assistance with a limp. He was able to walk on his heels and toes and perform partial squatting without pain. Muscle strength was 5/5 bilaterally. Motion of the left knee was reported to be from 0 to 140 degrees. There was crepitus and soft tissue swelling but no left knee weakness, instability, locking, or lack of endurance. The diagnosis was degenerative osteoarthritis with multiple intraarticular loose bodies. A left knee evaluation was provided by VA in May 2009, and the examiner noted that the computer medical records were reviewed. The Veteran complained of left knee pain, which he noted to be 8 or 9 out of 10. He took Percocet. He was not incapacitated and could perform his daily activities. He walked with a limp and used a cane. There was no left knee weakness, instability, ankylosis, locking, or lack of endurance. The pertinent diagnosis was persistent left knee pain, status post surgery. Because the medical evidence shows that limitation of flexion of the left knee was no worse than 110 degrees and limitation of extension of the left knee was no worse than 10 degrees on VA examinations in June 2004 and May 2009, an evaluation in excess of 10 percent is not warranted for this knee disability under Diagnostic Code 5260 or 5261 during the appeal period. A higher evaluation would require limitation of extension to more than 10 degrees or limitation of flexion to less than 45 degrees. In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257. In this case, however, there is no medical evidence of joint instability. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (Observing that it is the Board's responsibility to evaluate the probative value of all evidence presented). Consequently, a separate compensable evaluation is not warranted for instability under Diagnostic Code 5257. Because there is also no medical evidence of ankylosis, dislocation of semilunar cartilage, or impairment of the tibia and fibula, a higher evaluation is not warranted for either knee disability during the entire appeal period under another diagnostic code for disability of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262 (2009). The Board also finds that, in light of the above evidence involving range of motion, which does not show sufficient limitation of flexion to warrant a compensable rating for the left knee, a higher rating is not warranted for the left knee disability based on the language of VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004), which involves rating compensable limitation of flexion and extension of the leg as separate disabilities under Diagnostic Codes 5260 and 5261. As previously noted, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements and 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes, however, that VA examinations in June 2004 and May 2009 do not reveal symptomatology such as left knee weakness, instability, locking, or lack of endurance. Consequently, a rating in excess of 10 percent is not warranted based on the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45. As the Veteran has been assigned a total disability rating based on individual unemployability since 1997, extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2009) is not relevant. Because the preponderance of the evidence is against the Veteran's increased rating claims, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation in excess of 10 percent for left knee disability is denied. REMAND The issues of entitlement to service connection for claimed right knee, left hip, bilateral ankle, bilateral leg arthritis and gouty arthritis of the feet, to include as secondary to the service-connected residuals of frostbite of the hands, were remanded by the Board in July 2008 for additional development, to include a VA orthopedic examination to determine whether arthritis is due to service or to service-connected disability. The examiner was to review the claims files and to provide a rationale for any opinion given. After review of the claims files, the Board agrees with the recent Informal Hearing contentions of the Veteran's representative that the May 2009 VA examination did not comply with the remand instructions. Although the examiner noted that the computer medical record was reviewed, it is unclear if this included all of the pertinent medical evidence in the claims files. The Board notes that both private records and VA medical records in the claims file dated from 205 to 2007 show diagnoses of generalized osteoarthritis and gout. Nevertheless the VA examiner stated no diagnoses of arthritis or current complaints of gout on examination. While the examiner provided a nexus opinion in May 2009 that it was unlikely that the Veteran's lower extremity disabilities were secondary to an old episode of service-connected frostbite of the hands, the examiner did not clearly state a rationale for this opinion and did not address whether there was any aggravation of lower extremity osteoarthritis due to service- connected frostbite of the hands, in accordance with Allen v. Brown, 7 Vet. App. 439 (1995). While the Veteran's representative believes that another health care provider should evaluate the Veteran, the Board does not find any objective evidence of bias on the part of the VA examiner in May 2009. Consequently, the Board concludes that it is appropriate to request that the examiner who saw the Veteran in May 2009 provide an adequate opinion. The United States Court of Appeals for Veterans Claims (the Court) has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Consequently, the Board finds that the RO did not adequately comply with the terms of the Board's July 2008 remand. Id. Based on the above, this issue is again REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. The AMC/RO must request that the Veteran provide the names, addresses, and dates of treatment of any health care providers, both VA and non-VA, who have treated him for right knee, left hip, bilateral ankle, bilateral leg arthritis and/or gouty arthritis of the feet since May 2009, the date of the most recent medical evidence on file. After securing any necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform the Veteran of this and provide him an opportunity to submit copies of the outstanding medical records. 2. After the completion of #1, the Veteran should be scheduled for another VA examination including an orthopedic examination. The VA examiner will conduct a complete review of the claims files to include all private and VA medical records, and provide an opinion on whether the Veteran has right knee, left hip, bilateral ankle, bilateral leg arthritis and/or gouty arthritis of the feet due to service or secondary to the service-connected residuals of frostbite of the hands, to include whether there was any aggravation of lower extremity osteoarthritis due to service-connected frostbite of the hands. The claims folder, including all medical records obtained, and a copy of this remand, will be reviewed by the examiner. The examiner must acknowledge receipt and review of the claims folder, the medical records obtained, and a copy of this remand. In all conclusions, the opinion must identify and explain the medical basis or bases, with identification of the evidence of record. The report prepared must be typed. 3. After the above has been completed, the AMC/RO will review the claims files and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Thereafter, the AMC/RO will consider all of the evidence of record and readjudicate the Veteran's claim for service connection for right knee, left hip, bilateral ankle, bilateral leg arthritis and/or gouty arthritis of the feet, to include on a secondary basis. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case ("SSOC"). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs