Citation Nr: 1237132 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 08-33 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating for a right knee disability. 2. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from December 1974 to July 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. A hearing before the undersigned Veterans Law Judge was held at the RO in September 2012 (i.e. a video hearing). The hearing transcript has been associated with the claims file. The issues of service connection for dental trauma and psychiatric disorder secondary to the service-connected right knee disability have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See September 2012 statement. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The record raises the question of whether the Veteran is unemployable due to his service-connected right knee disability. The issue of entitlement to TDIU rating is part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues are as noted on the title page. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The right knee disability is never manifested by ankylosis, limitation of flexion to at most 60 degrees, or impairment of the tibia and fibula, but it is manifested by limitation of extension, arthritis, and instability. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent prior to November 26, 2008, and a rating greater than 30 percent from November 26, 2008, forward, for instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257 (2011). 2. The criteria for a separate 10 percent rating for limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5261 (2011). REASONS AND BASES FOR FINDING AND CONCLUSIONS Increased Rating For historical purposes, it is noted that service connection was established for residuals of right knee strain by the RO in a September 1992 decision. A 10 percent rating was assigned under Diagnostic Code (DC) 5257, which rates instability. In July 2006, the Veteran submitted a claim for increased rating, contending that he had increased pain and swelling in the right knee. In the April 2007 rating decision on appeal, the RO continued the 10 percent rating but indicated that the rating was assigned under DC 5010 for arthritis with scar. The RO later assigned a separate 30 percent rating for instability, effective November 26, 2008. See October 2009 rating decision. The Veteran contends that his right knee disability merits a higher rating. Due to the RO's failure to sever the 10 percent rating under DC 5257 or assign a separate rating under DC 5010 and in light of VAOPGCPREC 23-97 and VAOGCPREC 9-2004, the Board finds the April 2007 rating decision did not effectively change the diagnostic code in effect for the right knee. In other words, the Board finds the Veteran's right knee disability has been consistently rated under DC 5257. As such, the issue is whether the right knee disability warrants a rating greater than 10 percent under DC 5257 prior to November 26, 2008; a rating greater than 30 percent under DC 5257 from November 26, 2008, forward; and a separate rating based on limitation of motion or scarring. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A May 2006 VA treatment record reflects the Veteran's history of progressive swelling and pain in the right knee with weight bearing/activity. Examination revealed moderate effusion which limited flexion/extension. Anterior drawer testing on the right was positive compared to the left. July 2006 magnetic resonance imaging (MRI) of the right knee revealed severe degenerative tears of the menisci and chondromalacia at the tibiofemoral compartments. September 2006 VA treatment records reflect the Veteran's history of increased swelling, pain, and tenderness in the right knee, particularly after working all day. He reported that he could feel the knee "shift." He also reported use of a brace. Examination revealed tenderness to palpation on the medial and lateral aspects of the joint line and posterior knee. Extension was full but flexion was limited on range of motion testing. Varus/valgus stress was normal. The Veteran was assessed with failed anterior cruciate ligament graft with evidence of meniscal tears. An October 2006 VA examination record reflects the Veteran's history of right knee pain, swelling, and grinding and poor ability to function. He denied giving way or instability. He also denied using an assistive device for ambulation but did use a brace, particularly at work. He indicated that the right knee disability did not impede his abilities at work, though he did note increased symptoms when he had to stand all day at work. He reported that his activities of daily living, including recreation, yardwork, and housework, were limited by the persistent pain. He also reported increased pain, fatigue, and weakness with repetitive use but denied flare-ups. Examination revealed a well-healed meniscectomy scar which was six centimeters in length, well-healed, nonadherent, non-tender, and without ulceration, depression, or elevation. The knee showed a mild varus alignment. Range of motion was from 0 to 130 degrees. There was increased pain with repetitive resistive extension but not with resisted flexion. There was mild incoordination to motion. The knee was stable to varus and valgus stress. X-ray images showed medial compartment space narrowing, posterior patellar spurring, and no joint effusion. The examiner diagnosed the Veteran with arthritis of the right knee, status-post anterior cruciate ligament reconstruction. The examiner indicated that he would assign an additional five degree loss of extension "for the DeLuca issues." November 2008 VA treatment records reflect the Veteran's history of pain and instability. The Veteran reported that he had difficulty keeping jobs because he was unable to perform warehouse work due to knee, ankle, back, and neck symptoms. Examination revealed that the Veteran lacked approximately 30 degrees flexion and "-10 degrees extension." There was small right knee effusion, minimal anterior drawer, and no medial /lateral laxity or McMurray's demonstrable. The Veteran was provided a cane. A February 2009 VA examination record reveals the Veteran's history of working part-time with time-lost due to ankle and knee pain, immobility, fatigue, weakness, and incoordination. Examination revealed crepitus, deformity, edema, abnormal tracking, tenderness, weakness, severe instability, and guarding of the right knee. The examiner noted that the Veteran had a meniscus abnormality with locking and effusion but no dislocation. The examiner added that the meniscus was not surgically absent or torn. McMurray's testing was positive, and there was tenderness to palpation over the ligaments. The Veteran reported that he could not climb stairs because of crepitus and pain. Range of motion testing revealed motion from 0 to 140 degrees without objective evidence of pain on motion. X-ray images showed mild osteoarthritis and mild subluxation. The prior joint effusion was no longer visualized. An October 2010 VA treatment record reflects the Veteran's history of falling several times in the previous couple of years, leading to increased pain and swelling in the right knee. A December 2010 VA treatment record reflects the Veteran's history of right knee pain, swelling, and buckling. Examination revealed generalized medial and lateral joint line tenderness, minimal effusion, and minimal laxity anteriorly. No crepitus was noted. An April 2011 VA examination record reflects the Veteran's history of chronic right knee pain, locking, stiffness, swelling, and instability. He reported that he had flare-ups once each week which lasted from several hours to three days. He indicated that during a flare-up, he avoided prolonged walking, kept his weight off his knee, and took Ibuprofen and Tramadol. The Veteran reported that he quit his job in February 2011 due to right knee, right foot, neck, and low back pain. He explained that he did not have restrictions prior to quitting his job because he was "afraid [he] would get fired if [he] asked for restrictions." The Veteran reported that he was able to perform his basic activities of daily living, though his girlfriend helped with showering and lower extremity dressing during flare-ups. He indicated that standing was limited to 30 minutes, walking was limited to 20 minutes, and lifting was limited to 30 pounds due to symptoms including right knee pain. He also indicated that he had avoided running and was only able to climb one flight with difficulty due to symptoms including right knee pain. He reported that he had used a cane for the previous three years due to the right knee giving way. Examination revealed tenderness to palpation. There was no swelling and no instability with valgus or varus stress. Lachman's and McMurray's tests were positive. There was a well-healed linear scar measuring 10.5 centimeters by 0.5 centimeters without evidence of infection or skin breakdown. Range of motion testing revealed motion from 0 to 110 degrees, with pain beginning at 90 degrees. The examiner diagnosed the Veteran with severe right knee degenerative joint disease with instability, status-post anterior cruciate ligament reconstruction. Entitlement to an Increased Rating DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. A rating greater than 10 percent is not warranted under DC 5257 prior to November 26, 2008, because the evidence does not suggest that the right knee disability resulted in worse than slight recurrent subluxation or lateral instability at any time during that period. In fact, the Veteran's histories and medical findings dating during this period suggest that there was no instability, laxity, or subluxation. The Board has considered whether a higher rating is warranted under an alternate diagnostic code, but finds none is applicable: although the record suggests the existence of dislocated cartilage, there is no evidence, to include history, of frequent locking which might warrant a higher rating under DC 5258. Furthermore, a rating greater than 30 percent is not warranted at any time from November 26, 2008, forward: 30 percent is the maximum rating available under DC 5257, and there is no evidence of ankylosis or malunion of the tibia and fibula with loose motion which might warrant a higher rating. See 38 C.F.R. § 4.71a, DC 5256, 5262. Entitlement to a Separate Rating The Board has considered whether a separate rating is warranted for limitation of motion. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260-61. Under DC 5260, a noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45º, a 20 percent rating is assigned for flexion limited to 30º, and a 30 percent rating is assigned for flexion limited to 15º. DC 5261 provides a noncompensable rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10º, a 20 percent rating for extension limited to 15º, a 30 percent rating for limitation to 20º, and a 40 percent rating for limitation to 30º. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2009). The appropriate rating for limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45. The rating criteria also provide a 10 percent rating for arthritis resulting in limitation of motion due to pain, spasm, or swelling that is otherwise noncompensable under the rating criteria. The Veteran's range of motion is too significant to warrant a compensable rating for limitation of flexion: although the Veteran has arthritis, the medical evidence documents that the Veteran can flex to at least 90 degrees without pain; the record does not suggest that flexion has ever been limited to 60 degrees or less, even after consideration of pain, swelling, and functional impairment. Thus, a separate compensable rating is not available under DC 5260. However, a separate 10 percent rating is warranted for limitation of extension based on the findings of extension limited to 10 degrees. See October 2006 and November 2008 VA medical records. A rating greater than 10 percent is not warranted based on the limitation of extension, however, as the record includes no findings suggestive of extension limited to greater than 10 degrees. The Board has also considered whether the scarring associated with the right knee disability warrants a separate rating but finds one is not merited because the evidence does not suggest that the scarring is unstable or painful or that it affects an area of at least 144 square inches. See 38 C.F.R. § 4.118. Thus, the Veteran is assigned a 10 percent rating under DC 5257 prior to November 26, 2008, and a 30 percent rating since that date and a separate 10 percent rating under DC 5261. Exraschedular Consideration The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the right knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the Veteran's right knee disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the right knee disability is primarily manifested by limitation of motion due to pain and swelling and instability. Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by letter dated in August 2006. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical findings as to the severity of the right knee disability, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. The Board acknowledges that the Veteran applied for benefits from the Social Security Administration (SSA). No prejudice results from the absence of any associated records, however, as the Veteran has not alleged that he underwent any relevant testing in conjunction with the application and any additional information the records could provide appears unnecessary as the record already contains ample information with which to rate the Veteran's right knee disability, the Veteran has not claimed to have medical findings indicative of more limited range of motion or increased instability, and the Board has already accepted the findings most advantageous to the Veteran (i.e. the "worst" findings) as the standard. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Based on the foregoing, any error in not obtaining SSA records is harmless. As such, VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. ORDER A rating greater than 10 percent prior to November 26, 2008, and a rating greater than 30 percent from November 26, 2008, forward, for right knee instability is denied. A separate 10 percent rating for limitation of extension of the right knee is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim "identify the benefit sought" has been satisfied ,and VA must consider whether the veteran is entitled to TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). TDIU is an element of all appeals of an initial or increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The evidence indicates that the Veteran stopped working in approximately February 2011, and he has indicated that he stopped working in part because of his service-connected right knee disability. See the September 2012 hearing transcript. Thus, the Board finds that the Veteran has made a valid claim for a TDIU and, as the record does not include an opinion as to whether the service-connected disabilities render the Veteran unemployable, the issue must be remanded. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Additionally, the record indicates that the Veteran applied for, but was denied, Social Security Administration (SSA) benefits. See the September 2012 hearing transcript. As these records are potentially relevant, they must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice with respect to the claim of entitlement to a TDIU. The Veteran should be asked to provide all relevant information concerning his employment history. 2. Ensure that all relevant VA treatment records are associated with the record. 3. Obtain the Veteran's SSA records, including all medical records which formed the basis of any decision rendered. Efforts to obtain these records should be documented and any evidence received in response to this request should be associated with the claims folder. 4. Thereafter, schedule the Veteran for an appropriate VA examination to determine the impact of the service-connected disabilities on employability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All pertinent symptomatology and findings must be reported in detail. Based on the examination and review of the record, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, (right knee instability, evaluated as 30 percent disabling; right knee, limitation of extension, 20 percent; and residuals, left ankle sprain, 20 percent) either singly or taken together, without regard to any non service-connected disabilities or his age, render him unable to secure and follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, adjudicate the claim of entitlement to a TDIU. If the benefit sought on appeal is denied, the appellant 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. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs