Citation Nr: 1243545	
Decision Date: 12/20/12    Archive Date: 12/27/12

DOCKET NO.  09-36 429	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an initial compensable (greater than 0 percent) disability rating for status post medial meniscectomy of the right knee.

2.  Entitlement to an initial compensable disability rating for bilateral hearing loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel




INTRODUCTION

The Veteran served on active duty from April 1963 to May 1983.  

This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 2008 rating decision of the Pittsburg, Pennsylvania VA Regional Office (RO).

The issues of entitlement to a compensable initial disability rating for a right knee disability and bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Since the grant of service connection, the Veteran's status post medial meniscectomy of the right knee has manifested by pain and limitation of motion.


CONCLUSION OF LAW

The criteria for an initial rating of at least 10 percent for status post medial meniscectomy of the right knee are met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.71a, DC 5003, 5260 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants a compensable disability of 10 percent for the Veteran's status post medial meniscectomy of the right knee (right knee disability) based on painful motion.  The issue of a higher or additional disability rating for the right knee disability is addressed in the remand portion of this decision.  As this decision represents a complete grant of the benefit addressed (namely painful motion), no discussion of VA's duty to notify and assist is necessary.

Higher Initial Rating - Laws and Regulations

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  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.  To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West 12 Vet. App. 119, 126 (1999).  The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35, (1993).  The Board acknowledges that 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).  Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

When evaluating joint disabilities rated on the basis of limitation of motion, VA When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Recently, the United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

Higher Initial Rating - Right Knee

In a November 2008 rating decision, the RO awarded service connection for a right knee disability and assigned an initial noncompensable (0 percent) disability rating, pursuant to 38 C.F.R. § 4.71a, DC 5257.  The Veteran seeks a higher initial rating.

Under 38 C.F.R. § 4.71a, there are several diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders.

Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003.  Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved.

Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, 20 percent evaluation for moderate impairment of the knee and a 30 percent rating if it is severe.  38 C.F.R. § 4.71a, DC 5257.

Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  DC 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic.  38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259.

Limitation of flexion of the knee warrants a 30 percent rating for limitation to 15 degrees, a 20 percent rating for limitation to 30 degrees, a 10 percent rating for limitation to 45 degrees, and a 0 percent rating for limitation to 60 degrees.  38 C.F.R. § 4.71a, DC 5260.  Limitation of extension of the knee warrants a 50 percent rating for limitation to 45 degrees, a 40 percent rating for limitation to 30 degrees, a 30 percent rating for limitation to 20 degrees, a 20 percent rating for limitation to 15 degrees, a 10 percent rating for limitation to 10 degrees and a 0 percent rating for limitation to 5 degrees.  38 C.F.R. § 4.71a, DC 5261.  

The knee is considered a major joint.  38 C.F.R. § 4.45(f).  The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2011).

Additional rating criteria are found under DCs 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively).

VA's General Counsel has clarified that for a knee disability rated under DC 5257 or DC 5259 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes.  A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003.  VAOPGCPREC 9-98 (1998).  VA's General Counsel has more recently held that separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261.  VAOPGCPREC 9-2004 (2004).

For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II.

The Board notes that in the May 2010 Statement of Representative, the Veteran's representative has argued that his disability has worsened since the prior exam in November 2008.  Therefore, the issue of entitlement to a separate additional or higher disability rating for the right knee disability is remanded below.  

The Board however notes that in light of Burton the Veteran is entitled to at least a 10 percent rating for the painful limited motion related to his right knee disability.  This rating is assigned because the November 2008 examination report revealed the Veteran has end-range-of-motion restriction and stress pains following physical work, and the Veteran competently reports that such motion is painful.  Indeed, it is VA policy to recognize actually painful motion as warranting at least the minimum compensable rating.  38 C.F.R. § 4.59.  This provision is applicable to any orthopedic disability.  See Burton v. Shinseki, 25 Vet. App. 1 (2010); see also 38 C.F.R. § 4.59.  As such, an initial rating of at least 10 percent is warranted for the Veteran's right knee disability for the entire appeal.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The issue of a higher or additional initial disability rating under other provisions is addressed in the remand portion below.  


ORDER

Subject to the law and regulations governing payment of monetary benefits, an initial disability rating of 10 percent for status post medial meniscectomy of the right knee is granted.


REMAND

In May 2010, the Veteran's representative reported that the Veteran's right knee disability has worsened since the VA examination in November 2008.  The representative claimed that the Veteran has increased complaints of swelling and locking of the joint.  As the representative asserted a worsening of his right knee disability and it has been more than four years since the most recent VA examination, the Board finds that a new examination is required before a final decision on the merits may be made.  As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his right knee disability.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  Thus, the Board has no discretion and must remand this claim.   

Regarding the Veteran's claim for a compensable initial disability rating, the Veteran had a VA audiological evaluation in November 2008 in which the audiologist in effect recorded the audiometric findings but provided very little discussion about the functional impairment actually caused by the Veteran's hearing loss. The Court has held that "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report."  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Because the November 2008 examination report is insufficient under Martinak, remand is required at this point.  38 C.F.R. § 3.159(c)(4).

Accordingly, the case is REMANDED for the following action:

1.  Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent, manifestations and impairment stemming from his hearing loss and right knee disabilities.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

2.  After physically or electronically associating any pertinent, outstanding records with the claims folder, the Veteran should be afforded an audiological evaluation by an examiner with sufficient expertise to determine the current severity of his service-connected bilateral hearing loss.  The claims folder must be made available to and reviewed by the examiner, and any indicated audiological studies should be performed.

In addition to dictating objective test results, the examiner's report should fully describe the effects of the Veteran's hearing loss disability on his occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007).

The examiner should provide a complete rationale for all opinions provided, which should be set forth in a legible report.

3.  After physically or electronically associating any pertinent, outstanding records with the claims folder, the Veteran should be afforded an evaluation by an examiner with sufficient expertise to determine the current severity of his service-connected right knee disability.  The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed.

The examiner should report the following:

a).  Range of flexion and extension in degrees using a goniometer; and any additional functional loss in flexion or extension due to pain, including during flare-ups, weakness, atrophy, excess fatigability, painful motion, or repetitive use, i.e. the extent of the Veteran's pain-free flexion and extension.  

b).  State whether the Veteran has recurrent subluxation or lateral instability.

c).  State whether the Veteran has any dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.

The examiner should provide a complete rationale for all opinions provided.

All findings and conclusions should be set forth in a legible report.

4.  Then readjudicate the appeal.  If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if otherwise in order.  

The Veteran has the right to submit additional evidence and argument on the matters 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. 2012).




______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs