Citation Nr: 1300743 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-23 043 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right leg disorder. 2. Entitlement to a disability evaluation in excess of 10 percent for degenerative joint disease of the left knee. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1949 to October 1959. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which increased the Veteran's disability evaluation for left knee degenerative joint disease to 10 percent, effective January 11, 2006, declined to reopen the Veteran's claim of service connection for a left shoulder injury, and denied service connection for a right leg, knee, and foot condition. The Veteran's claim folder and jurisdiction of this matter were subsequently returned to his local RO in Atlanta, Georgia. The Veteran was originally scheduled to testify at a Board hearing on October 27, 2007. However, he withdrew his hearing request in an October 2007 letter. In April 2011, the Board reopened and granted service connection for residuals of a left shoulder injury and remanded the remaining issues for further development. In doing so, the Board divided the original claim of service connection for a right leg, knee, and foot condition into three separate claims for a right leg disability, right knee disability, and right foot disability. In an August 2012 rating decision, the Appeals Management Center (AMC) granted service connection for right knee osteoarthritic change and chondrocalcinosis and right foot peripheral neuropathy. The August 2012 grant represents a full grant of the benefits sought with regard to the right knee and right foot issues. As such, the Board will confine its consideration to the issues set forth on the title page. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's right leg neuropathy is related to his military service, but not his right leg cellulitis and edema. 2. The Veteran's degenerative joint disease of the left knee is characterized by pain and limitation of motion. 3. The Veteran's left knee meniscectomy has also resulted in symptoms of crepitus and locking. CONCLUSIONS OF LAW 1. Right leg neuropathy was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The criteria for service connection for right leg cellulitis and edema have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). 3. The criteria for a rating higher than 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2012). 4. The criteria for a separate 10 percent rating for symptomatic removal of the semilunar cartilage of the left knee have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d at 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, such as the Veteran's current left knee claim, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was sent two letters in March 2006 that, combined, provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished and therefore appellate review may proceed on the merits. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service records, post-service reports of VA and private treatment, and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's April 2011 remand, VA obtained additional, VA treatment records dated on or after April 2008 and associated them with the file. VA also provided the Veteran with medical examinations in November 2012. The VA examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Indeed, this examination contained all information needed to rate the left knee disability. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the April 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. Service connection - Right Leg Disability In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Direct service connection requires competent and credible evidence of a current disability; competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and a nexus between the in-service injury and the Veteran's current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Alternately, service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In this case, the Veteran has complained of pain, weakness, and cold sensation in his right leg. The medical evidence of record also notes pitting edema. The November 2012 VA examiner has diagnosed the Veteran with chronic cellulitis, edema, and peripheral neuropathy. Thus, the current disability requirement is satisfied. The Veteran's service treatment records are silent with regard to an active duty onset of a right leg disability. The Veteran has reported that he served as a paratrooper during his service in Korea and that the conditions of his service included cold exposure. The Veteran is competent to provide lay testimony regarding the circumstances of his service and the Board has found these accounts credible. Thus, this in-service injury requirement is met. The evidence of record does not show symptoms of chronic cellulitis and edema dating back to the Veteran's service. Indeed, the November 2012 examiner notes that the Veteran reports an onset of these disabilities at more than 50 years after his separation and therefore opined that these disabilities were less likely than not related to the Veteran's military service. By contrast, the Veteran has reported an in-service onset of burning pain, which the November 2012 examiner associated with peripheral neuropathy. This examiner also opined that the Veteran's peripheral neuropathy of the right leg was due to a non-freezing cold injury (i.e., the Veteran's reported cold weather exposure) during service. Thus, a positive medical nexus opinion has been provided that links the Veteran's right leg peripheral neuropathy to his active duty military service. In conclusion, the Board finds that the preponderance of the evidence is against a finding of entitlement to service connection for chronic cellulitis or edema; thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. However, the record supports a grant of service connection for right leg neuropathy. Therefore, service connection is awarded for right leg neuropathy only. Increased Rating - Left Knee Disability The Veteran was originally granted service connection for his left knee disability in a February 1960 rating decision. At that time this disability was evaluated as noncompensably (zero percent) disabling and assigned an effective date of October 2, 1959. The Veteran filed a claim for an increased evaluation in January 2006. The disability is currently evaluated as 10 percent disabling. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A claimant, however, may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration that different (staged) ratings may be warranted for different time periods during the period of appellate review beginning within one year of his January 2006 claim. Thus, the Board will consider whether a staged rating is appropriate. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012) Under Diagnostic Code 5010, traumatic arthritis established by x-ray findings will be rated either based on the limitation of motion of the affected joint based on x-ray findings. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (20120. Ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, Note 1. When there is no limitation of motion of the specific joint involved a 10 percent evaluation is for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is available for arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When there is some objectively confirmed limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, a rating of 10 percent is warranted for each such major joint or group of minor joints affected by limitation of motion. Id. When there is compensable (10 percent or higher) limitation of motion of the specific joint affected, that joint should be evaluated under the appropriate diagnostic codes for limitation of motion of that specific joint. Id. Limitation of motion of the knee is evaluated under Diagnostic Code 5260 (for limitation of flexion) and Diagnostic Code 5261 (for limitation of extension). Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5260, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 dictates that extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, and extension limited to 20 degrees is 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5261. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). If the criteria for a compensable rating under both Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (Sept. 17, 2004). Separate evaluations are available for separate symptoms, such as arthritis and instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). Specifically, VA's General Counsel has held that when x-ray findings of arthritis are present and a veteran's knee disability is evaluated under Code 5257, the Veteran would be entitled to a separate compensable evaluation under Diagnostic Code 5003 if the arthritis results in at least noncompensable limitation of motion. See VAOPCGPREC 9-98 (Aug. 14, 1998). Objectively, the Veteran's left knee degenerative joint disease has been characterized by limitation of motion, crepitus, guarding of movement, deformity, and bony joint enlargement. See e.g., July 2011 VA examination. Subjectively, the Veteran has reported pain, weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, and limitation of daily activities. Specifically, the Veteran reports that he is unable to stand for more than five minutes or walk for more than a few yards, even with a cane. These complaints were also noted with respect to his other service connected disabilities of the bilateral lower extremities. Degenerative joint disease of the left knee has been shown by x-ray. Throughout the appeals period, the Veteran's range of motion has been recorded as no worse than from zero degrees extension to 90 degrees flexion, which accounted for additional limitation after repetitive use due factors such as pain, fatigue, weakness, and lack of endurance. See March 2009 VA examination, see also July 2006, July 2011, and November 2012 VA examinations; April 2011 VA treatment record. As such, the Veteran's limitation of motion of the left knee is not sufficient to warrant compensation under Diagnostic Code 5260, which requires limitation of flexion to 45 degrees or less, or Diagnostic Code 5261, which requires limitation of extension to 10 degrees or more, much less separate compensable evaluations under both, even with consideration of painful motion and other factors. Moreover, there is no finding of ankylosis that would warrant an evaluation under Diagnostic Code 5256. Thus, the Veteran's limitation of motion of the left knee most nearly approximates the criteria for a 10 percent evaluation under Diagnostic Code 5010 for traumatic arthritis. With regard to left knee instability, the Board notes that despite the Veteran's complaints of giving way, physical examination of the Veteran's left knee has consistently found the knee stable. See e.g., July 2006, March 2009, and November 2012 VA examinations. Likewise, there is no evidence of patellar subluxation. As such, a separate evaluation for instability or subluxation is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has also considered whether evaluation under another diagnostic code is appropriate. In this regard, there is no evidence of genu recurvatum or impairment of the tibia or fibula. See e.g., March 2009 VA examination. Thus evaluation under Diagnostic Codes 5262 or 5263 is not warranted. The record does, however, indicate that the Veteran has a meniscus condition as the result of his in-service cartilage removal. Moreover, this has been associated with the Veteran's symptoms of pain, decreased range of motion, and crepitus. See November 2012 VA examination. Additionally, the Veteran has reported frequent episodes of locking. While there is some overlap of symptoms between this and the criteria upon which the existing 10 percent rating is based, the Board finds that the additional symptoms of crepitus and locking are sufficient to satisfy the requirements for a separate 10 percent evaluation under Diagnostic Code 5259, for symptomatic meniscus removal, while avoiding impermissible pyramiding. See 38 C.F.R. § 4.14 (2012). As there is no evidence of current dislocated cartilage, a higher evaluation under Diagnostic Code 5258 is not available. Finally, the Veteran's left knee disability has been associated with a scar. The Board has considered whether a separate compensable evaluation is warranted for this scar. The Board notes that the Veteran's left knee scar is not on his head, face or neck, therefore evaluation under Diagnostic Code 7800 for disfigurement of the head, face, or neck is not warranted. See 38 C.F.R. § 4.118 (2008). In order to warrant a compensable evaluation, the Veteran's scars must be characterized as deep (i.e., associated with underlying soft tissue damage) or cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) (Diagnostic Code 7801); superficial (i.e., one not associated with underlying soft tissue damage) that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater (Diagnostic Code 7802); superficial and unstable (where, for any reason, there is frequent loss of covering of skin over the scar) (Diagnostic Code 7803); or superficial and painful on examination (Diagnostic Code 7804). 38 C.F.R. § 4.118 (2008). All other scars are rated on limitation of function of affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2008). The July 2006, March 2009, and July 2011 VA examiners all noted the Veteran's left knee scar. These examination reports consistently found a relatively small affected area, far less than the 929 sq. cm. required for a compensable evaluation under diagnostic code 7802. The scar is not described as deep and has not been associated with limitation of motion. Thus diagnostic code 7801 does not apply. There was no finding of instability or pain upon examination, thus a compensable evaluation under diagnostic code 7804 is not warranted. Finally, there is no finding of associated limitation of function, thus a compensable evaluation under diagnostic code 7805 is not available. Thus, the Board finds no basis upon which to award a separate disability evaluation for the Veteran's associated surgical scar of the left knee. As explained above, the preponderance of the evidence is against the assignment of an evaluation in excess of the currently assigned 10 percent for the Veteran's limitation of motion of the left knee associated with his left knee degenerative joint disease. Additionally, the Board determines that preponderance of the evidence is in favor of the assignment of a separate 10 percent evaluation, but no more, for additional symptoms associated with his meniscus removal. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against higher ratings or other separate ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Extraschedular Considerations The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as instability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. The Board notes the Veteran's reports of inability to stand for more than five minutes or walk for more than a few yards that have been echoed in his examinations for his service connected right knee, leg, and foot disabilities and, thus, have not been associated solely with his left knee disability. While these limitations on daily activities might seem extreme compared to the relatively low evaluation awarded for his left knee disability, the combined evaluation of all of his contributing lower extremity disabilities adequately addresses his mobility complaints. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. TDIU The Court has held that TDIU is an element of all appeals of an initial or for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). The question of entitlement to TDIU arises where the Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The question of entitlement to TDIU does not arise in the absence of evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In this case, the Board notes that the Veteran is retired; however, there have been no reports of unemployability. Accordingly, the question of entitlement to TDIU does not arise. ORDER Service connection for peripheral neuropathy of the right leg is granted. An evaluation in excess of 10 percent for left knee degenerative joint disease is denied. A separate 10 percent rating for symptomatic removal of the semilunar cartilage of the left knee is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs