Citation Nr: 1302482	
Decision Date: 01/23/13    Archive Date: 01/31/13

DOCKET NO.  09-29 545	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for systemic lupus erythematous (SLE).

2.  Entitlement to an initial compensable evaluation for the status post left knee posterior cruciate ligament repair with left knee strain, prior to November 4, 2010.

3.  Entitlement to an initial evaluation in excess of 10 percent for the Veteran's status post left knee posterior cruciate ligament repair with left knee strain since November 4, 2010.

4.  Entitlement to an initial compensable evaluation for right calf muscle weakness and numbness, status post right popliteal artery release.

5.  Entitlement to an initial evaluation in excess of 20 percent for Raynaud's Disease prior to November 4, 2010.

6.  Entitlement to an initial evaluation in excess of 40 percent for Raynaud's Disease since November 4, 2010.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Navy from December 1993 to January 2001 and January 2004 to January 2008.  He also served on active duty with the United States Army from June 2001 to October 2003.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Denver, CO, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for left knee and right calf disabilities, and Raynaud's Disease, and assigned initial evaluations therefore.  The June 2008 decision also denied service connection for SLE.  

During the course of the appeal, the RO granted increased evaluations for Raynaud's Disease before and after November 4, 2010, in a July 2009 rating decision.  Both stages of evaluation remain on appeal.  AB v. Brown, 6 Vet. App. 35 (1993).

In January 2011, the RO additionally awarded a separate compensable evaluation for laxity and subluxation of the left knee, effective from November 4, 2010.  The Veteran initiated appeals of both the evaluation and the effective date of the grant.  The earlier effective date sought was granted in a May 2011 decision; no further question remains for consideration by the Board with respect to that issue.  With regard to the assigned 10 percent evaluation, the RO initially, in a January 2011 supplemental statement of the case (SSOC), indicated the matter was part and parcel of the already pending appeal; the RO simultaneously awarded an increased 10 percent evaluation for the left knee limitation of motion.  However, this error was corrected with the issuance of a May 2011 statement of the case (SOC) which identified the dispute over evaluation for left knee subluxation as a separate appellate issue, and informed the Veteran of the need to perfect his appeal with the filing of a VA form 9, Appeal to Board of Veterans' Appeals, within one year of the January 2011 decision.  The Veteran did not perfect his appeal with regard to that issue, and so it is not before the Board.  The Board notes that the Veteran's representative did not list the matter as an issue in its November 2012 submission of an Appellant's Brief.

For purposes of clarity in discussing the differing service-connected disabilities, particularly in light of the need to address multiple disabling manifestations in the same body part under different Diagnostic Codes, the issues have been recharacterized as above to reflect the manifestations addressed under each.

In April 2011, the veteran filed a request for expedited handling of his claim by the RO due to financial hardship.  This is taken as a motion to advance his appeal on the Board's docket, pursuant to 38 C.F.R. § 20.900(c)(1).  The Veteran indicated that he had been laid off from his job, and was depleting his savings rapidly.  He was not eligible for unemployment benefits, and had encountered no luck in securing new employment.  He submitted no documentation in connection with his motion, nor has he at any time since April 2011 renewed or followed up on his request.

The Board declines to grant the Veteran's motion, as there is insufficient evidence of financial hardship.  Further, the docket number assigned to the appeal is among the oldest of docket dates currently being worked by the Board, such that the appellant's claim is already among those that the Board must address with expedience.  As such, the denial of the motion to advance the claim on the Board's docket does not prejudice the Veteran.  

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the "Virtual VA" system to insure a total review of the evidence; no records have been added to the file since the most recent January 2011 SSOC.

A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability.  Rice  v. Shinseki, 22 Vet. App. 447 (2009).  While assigned evaluations are in dispute here, the Veteran has not alleged that he is unemployable, or even unemployed, due to service-connected disabilities.  Accordingly, no TDIU claim is inferred.

The issues of service connection for SLE and evaluation of a right calf disability 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.


FINDINGS OF FACT

1.  Prior to November 4, 2010, the Veteran's status post left knee posterior cruciate ligament repair with left knee strain was manifested by subjective complaints of pain, to include on use, with no objectively shown pain on repetitive use or limitation of function.  Radiographic studies showed post-operative changes of the tibia, without degeneration.

2.  Since November 4, 2010, the Veteran's status post left knee posterior cruciate ligament repair with left knee strain, has been manifested by no greater than slight (5-10 degree) limitation of motion, with pain and x-ray evidence of degenerative changes.

3.  Throughout the appellate period, Raynaud's Disease has been manifested by occasional, non-daily characteristic attacks marked by color changes of the fingers and numbness, triggered by cold temperatures; there is no evidence of any related ulcerations.



CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent evaluation, but no higher, for the status post left knee posterior cruciate ligament repair with left knee strain, prior to November 4, 2010, are met.  38 U.S.C.A. §§ 1155, 5107 (West 2022 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2012).

2.  The criteria for an initial evaluation in excess of 10 percent for the Veteran's status post left knee posterior cruciate ligament repair with left knee strain since November 4, 2010, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2022 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003, 5260 (2012).

3.  The criteria for an increased initial evaluation of 40 percent, but no higher, for Raynaud's Disease prior to November 4, 2010, are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7117, Note (2012).

4.  The criteria for an initial evaluation in excess of 40 percent for Raynaud's Disease are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7117, Note (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

This appeal arises from the Veteran's disagreement with the initial evaluations assigned following the grants of service connection in the June 2008 rating decision.  Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  No additional discussion of the duty to notify is therefore required.

VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection.  This duty includes assisting the Veteran 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 Veteran's service treatment records and available VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA).  38 C.F.R. § 3.159(c)(2).  

VA examinations were conducted in January 2008, May 2010, and November 2010; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examiners made all necessary clinical findings and described the Veteran's subjective complaints; the Veteran, a former Army medic, has indicated that he discussed some conclusions with examiners as they were made.  He has argued that the evidence is stale, as the most recent examination took place two years ago.  However, the Veteran has not reported worsening of his conditions since the examination, and treatment records do not show worsening; he has indicated that his conditions are generally stable.  The passage of time alone does not render an examination deficient.  In the evidence of allegations or evidence suggestive of a likelihood of worsening, no updated VA examination is necessary.

The Veteran has additionally submitted an electronic file purporting to contain a video of the function of his knee.  The RO informed him that due to cybersecurity concerns and policies, his media could not be viewed.  The Veteran therefore posted the video online, on a blog website.  However, policies against use of streaming video websites again prevent viewing of the material.  Nevertheless, the Veteran is not prejudiced by the inability to view the video.  His knee disabilities relate to internal derangements which cannot be viewed by the naked eye, and regulations require measurements, not visual estimates, of motion and stability.  The video is not competent evidence of such.

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Analysis

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  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 importance.  Francisco v. Brown, 7 Vet. App. 55, 58  (1994).  Separate ratings may be assigned for separate periods of time based on the facts found, however.  This practice is known as "staged" ratings."  Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating 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 civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  

Left knee

There are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability.  Code 5256 is utilized for evaluation of ankylosis or the functional equivalent; as there remains almost full motion of the knee, this Code is not applicable.  

Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci, but in this case no meniscal injury has been diagnosed.  At a January 2008 VA examination, there was no meniscal tenderness or other complaint related to the semilunar cartilage.  The possibility of a tear was raised in an October 2010 VA treatment record, but at most, one could not be excluded on December 2010 MRI.  Testing at a November 2010 VA examination was questionable, but the Veteran denied related symptoms such as locking.  Despite the repeated investigations and work-ups, no care provider has diagnosed a meniscal injury, the Veteran denied locking and the evidence does not show he has undergone a meniscectomy.  Accordingly, a separate rating pursuant to these code provisions is not warranted.

While evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg.  No tibia or fibula impairment is shown here.  At most there are postoperative artifacts impacting the tibia; this is not a defect in the bone.  38 C.F.R. § 4.71a . 

Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint.  A separate evaluation under this Code was granted in the January 2011 rating decision, and is not currently on appeal.

For limitation of motion, there are three potentially applicable Diagnostic Codes.  In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Code 5260, under which the Veteran is currently rated, assigns evaluations based on limitation of flexion.  Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation.  A 10 percent evaluation is assigned for limitation to 45 degrees.  Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion.  38 C.F.R. § 4.71a, Code 5260. 

Limitation of extension is rated under Code 5261.  A noncompensable evaluation is assigned for limitation to 5 degrees.  A 10 percent evaluation is for assignment when extension is limited to 10 degrees.  Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation.  Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation.  38 C.F.R. § 4.71a, Code 5261.  Again, all examiners note a full range of motion, with extension to 0 degrees, and no pain is noted with movement in that plane, even after repetition.  No compensable evaluation is warranted under Code 5261.

Code 5003, for degenerative arthritis, provides that degenerative arthritis that is established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved, as are discussed above.  When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a, Code 5003. 

When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  38 C.F.R. § 4.71a, Code 5003.  The knee is a major joint.  38 C.F.R. § 4.45.

Note (1) provides that the 20 and 10 percent ratings based on X-ray findings may not be combined with ratings based on limitation of motion.  

VAOPGCPREC 9-04, provides that where a claimant has both limitation of flexion and limitation of extension of the same leg separate ratings under diagnostic codes 5260 and 5261 are warranted to adequately compensate for functional loss associated with injury to the leg.  An evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations.  See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14.

At the January 2008 VA examination, conducted prior to discharge from service, the Veteran reported subjective pain.  Activity such as walking or going down stairs caused flare-ups of pain four times a week, for six to eight hours.  He used Motrin for relief, and sometimes wore a brace.  Injections did not help.  The Veteran stated the problems had no impact on his daily activity, and had not caused him to miss work in the prior year.  Physical examination showed tenderness over the anteroinferior patella.  The joint was stable, with no ligamentous laxity demonstrated.  Flexion was full and painless to 140 degrees, and extension was full and painless to 0 degrees.  Repetitive motion testing against resistance did not result in any additional functional impairment due to pain, weakness, lack of endurance, or incoordination.  As was noted above, an x-ray showed postoperative changes of the tibia; there were no degenerative changes.

In a November 2008 statement, the Veteran reported left knee pain, including after attempting to run.  Pivoting could cause sharp pain and he was told there was almost certainly arthritic development.

At a May 2010 VA examination, the Veteran reported that he exercised two to three times a week; he avoided running due to left knee pain.  He limited walking to 20 minutes when possible, and standing to an hour.  He could climb eight flights of stairs without difficulty, but developed pain immediately when descending.  Activities of daily living were unaffected, and he did not use a cane or walker.  He wore a brace for activities like skiing.  This examination did not focus on the left knee disability, and so no range of motion testing was done.

The Veteran was again examined with respect to the left knee in November 2010.  He reported that he was self-employed as a gym owner; he had not missed any work due to his knee.  Daily activities were not impaired.  The Veteran lifted weights and rowed for exercise; he engaged in very limited running, and no longer cycled.  While he was capable of walking without limitation, he did report discomfort in the knee after an hour.  Standing for an hour also caused pain.  He occasionally wore a knee brace, particularly with activity requiring lateral movement.  The Veteran complained of continuing daily left leg achiness and feelings of instability in the left knee.  Pain was usually 4/10, but would increase to 6/10 with running.  He had experienced only one episode of flare-up pain over the past year.  The Veteran subjectively felt his knee was "loose" and he reported instability with hyperextension.  He also stated he had stiffness in the mornings, and minimal swelling lateral to the joint.  On physical examination, there was no obvious swelling, tenderness, instability, or misalignment.  Gait was normal.  Some effusion could be adduced with "milking" of the joint.  Ligament testing showed stability of the joint.  McMurray testing for meniscal damage was "questionable" as it demonstrated clicking but no pain.  Range of motion testing of the left knee was from 0 to 130 degrees, with pain at the extremes of movement.  Some limitation was due to muscularity of the thighs, but the left knee had 5 degrees less movement than the right.  Strength testing was normal.  Repetitive motion testing did not cause additional functional impairment due to pain, weakness, lack of endurance, fatigue, or incoordination.  An x-ray showed "tiny degenerative patellar osteophyte formation." 

The Veteran has indicated that he did not seek any medical care from separation to approximately October 2010, as he had no insurance.  Upon seeking to establish VA care in October 2010, the Veteran reported left knee pain; no functional impairment was reported.  Gait was normal.  

	Prior to November 4, 2010

The measured range of motion of the left knee in both flexion and extension does not rise to a compensable level at any time prior to November 2010.  To warrant a compensable evaluation for flexion, limitation to 45 degrees is required; the Veteran's movement was full and complete to 140 degrees.  Extension was full at 0 degrees; limitation must be limited to 10 degrees to merit a compensable rating. Even upon consideration of the DeLuca factors, including the Veteran's competent and credible reports of pain with or following activities like running, there is no actual functional impairment of the left knee shown in either plane of motion.  Movement was painless on examination.  

However, special consideration has been given to the functional impact of pain in this case, as the Veteran's main contention is that he experiences pain.  38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1 (2011).  Prior to November 4, 2010, there was no measurable limitation of function, even upon consideration of pain.  Movement was full and complete from 0 to 140 degrees and motion to include on repetitive use was painless.  However, the Veteran reported that he had flare-ups of pain including with walking and when descending stairs.  He also reported in May 2009 and August 2009 that he had pain with sudden movements or twisting.  In October 2010, he reported pain on squatting.  He has also reported limitations on prolonged walking and standing.  Although the VA examiner found no limitation of motion or pain on repetitive motion on examination, the Board finds credible, competent and probative the Veteran's reports of pain on use.  Painful motion with joint or periarticular pathology and unstable joints due to healed injury is recognized as productive of disability entitled to at least a minimal compensable rating for the joint.  38 C.F.R. § 4.59.  In this regard, the United States Court of Appeals for Veterans Claims held that the application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  Here the Veteran was not diagnosed as having arthritis until November 2010, however, he still had a diagnosed knee disability and painful motion prior thereto.  Accordingly, a 10 percent evaluation, but no higher, is warranted for painful motion pursuant to the criteria set forth in Diagnostic Code 5003 based on noncompensable limitation of motion.  See 38 C.F.R. §§  4.40, 4.45, 4.59.  Doubt has been resolved in the Veteran's favor in assigning the 10 percent evaluation, however, the evidence, including his statements does not show that a higher evaluation is warranted.  Limitation of motion to 30 degrees on flexion or extension to 15 degrees is not shown during this period of time and his reports of painful motion on use, to include during flare-ups of pain, were fully considered in assigning the compensable evaluation.  

	Since November 4, 2010

In contrast, the competent medical evidence of record first shows the appearance of degenerative changes on x-ray in connection with the November 4, 2010, examination.  Moreover, the examiner documented some limitation of motion in flexion, to 130 degrees.  The Board has considered the impact of pain, weakness, fatigue, lack of endurance, and incoordination on function, but even so, the reported actual functional impairment does not meet the Schedular criteria for a compensable evaluation under Code 5260, never mind an increase over the currently assigned 10 percent rating.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, the presence of some limitation, in combination with the radiographic evidence, does warrant assignment of a 10 percent evaluation under Code 5003.  The Veteran's reports of painful motion are again considered competent, credible and probative and they support the assignment of the 10 percent evaluation.  His reports along with limitation of motion limited to 130 degrees warrants a 10 percent evaluation, however, he has not reported that he experiences limitation of flexion to 30 degrees to include on flare-ups, nor does the evidence show such limitation.  In addition, limitation of extension is not shown.  Accordingly, a higher evaluation is not warranted.

No higher evaluation is available under Code 5003 for a single joint; there must be involvement of at least 2 major joints or 2 minor joint groups, with occasional incapacitating exacerbations, to merit a 20 percent evaluation.  

Extraschedular

For both stages of evaluation of the left knee, consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321.  Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).

First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The Schedular rating criteria are more than adequate for evaluation of the left knee limitation of flexion, status post PCL repair.  The criteria fully address and consider the signs and symptoms complained of by the Veteran, and reported clinically.  This includes consideration of the impact of pain, weakness, fatigue, lack of endurance, and incoordination in measuring the degree of actual functional impairment, including on flexion.  The criteria also provide higher levels of compensation for symptomatology worse than that currently manifested.  As the Schedule is adequate, no further discussion of extraschedular evaluation under 38 C.F.R. § 3.321(b) is necessary.

Raynaud's Disease

Raynaud's disease, or Raynaud's syndrome, is rated under Code 7117.  In pertinent part, a 20 percent evaluation is assigned for characteristic attacks four to six times a week.  Daily characteristic attacks are rated 40 percent disabling.  With a history of characteristic attacks and two or more digital ulcers, a 60 percent evaluation is assigned.  A total, 100 percent evaluation is assigned for two or more digital ulcers plus autoamputation of one or more digits and a history of characteristic attacks.  "Characteristic attacks" consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upsets.  It does not matter how many limbs or extremities are affected.  38 C.F.R. § 4.104, Code 7117, Note.

At the January 2008 VA examination, the Veteran reported that the middle three fingers of each hand would turn white in cooler weather, below 70 degrees F.  He underwent no treatment, and reported no impact on his daily activities or occupational functioning.  

In May 2009 correspondence, the Veteran reported that Raynaud's Disease affected him year round.  In August 2009 correspondence, the Veteran clarified that he had daily attacks of symptoms, triggered by cool temperatures or contact with cool surfaces or substances.   Even swimming in a pool during the summer could cause an attack.  He stressed that while attacks were more frequent and severe in cold (winter) weather, they occurred 12 months a year, on a daily basis.

In November 2010, the Veteran reported to a VA examiner that he was self-employed as a gym owner, and had not missed any days due to Raynaud's phenomenon.  The Veteran was diagnosed when his fingers turned white after holding them in running cold water for a few minutes.  Since discharge, the Veteran had not sought treatment.  He reported that since moving to Colorado, however, he had noticed increased symptoms with weather changes.  He can obtain relief by running his fingers under warm water.  Temperatures around 60 degrees F, holding cold cans, or typing on a cold keyboard could trigger attacks.  He experienced symptoms daily.  He adjusted his activities to avoid triggers.  The Veteran denied any ulcerations or splinter hemorrhages.  On physical examination, his hands were warm.  After he was exposed to cold water, color changes of the fingers were noted.

The Veteran has argued that he has, throughout the period currently on appeal, had daily characteristic attacks of Raynaud's symptomatology warranting assignment of an increased evaluation.  There is no medical documentation of such attacks; while examiners confirm the diagnosis, the Veteran does not receive regular treatment.  Further, the January 2008 VA examiner failed to comment on the frequency of attacks.

However, the Veteran is competent to report the occurrence of an attack.  He can easily observe the associated color changes, and can feel the sensory alterations and pain which accompany such.  Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Moreover, the Veteran is trained as a medic, and has some heightened degree of specialized knowledge to apply in analyzing his symptoms.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

There is no basis in the record to doubt the credibility of his statements.  The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  The details he provided to clarify his statements in May and August 2009, as well as in later correspondence, are not in any way contradicted by other evidence of record. 

As the sole evidence of the frequency of characteristic attacks prior to November 4, 2010, consists of the Veteran's uncontroverted competent lay statements, entitlement to an increased, 40 percent evaluation for that stage is warranted.  

For the entirety of the appellate period, both before and after November 4, 2010, no evaluation in excess of 40 percent is warranted.  Such an evaluation would require the presence of digital ulcers.  No care provider has described any ulcers, or any residual skin changes indicating a history of such.  Further, the Veteran, whose testimony as to the existence of ulcers would be competent evidence, has not at any time indicated that he has suffered from digital ulcers. In the absence of any showing or allegation of ulcerations, a yet higher evaluation  of 60 percent or 100 percent is not appropriate. 

As the criteria of the Rating Schedule are fully adequate for evaluation of the Veteran's Raynaud's syndrome, extraschedular evaluation is not applicable.  The criteria address the Veteran's complaints fully, and allow for higher evaluations for additional, or more severe, signs and symptoms.  38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008).  The temperature and color changes of the fingers, as well as sensory changes, reported by the Veteran are fully accounted for by the applicable rating criteria.


ORDER

An initial 10 percent evaluation, but no higher, for status post left knee posterior cruciate ligament repair with left knee strain, prior to November 4, 2010, is granted.

An initial evaluation in excess of 10 percent for status post left knee posterior cruciate ligament repair with left knee strain, since November 4, 2010, is denied.

An increased initial evaluation of 40 percent, but no higher, for Raynaud's Disease prior to November 4, 2010, is granted.

An initial evaluation in excess of 40 percent for Raynaud's Disease since November 4, 2010, is denied.


REMAND

Remand is required with respect to the claims of service connection for SLE and evaluation of a right calf disability, for compliance with VA's duty to assist the Veteran in substantiating his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  This duty includes providing an examination when necessary for adjudication of the claim.  38 C.F.R. § 3.159(c)(4).

SLE

The Veteran has alleged that a diagnosis of SLE is warranted.  Indeed, some testing during and after service and clinically observed symptoms support his allegation. Ultimately, however, military doctors appear to have concluded that a diagnosis was not appropriate.  There continues to be some question, however.  The January 2008 VA examiner referred to SLE as a "suspected diagnosis" and noted suggestive test results.  He conducted no further testing to establish the correct diagnosis, and instead relied on the absence of a diagnosis by other doctors.  VA treating doctors noted questionable lupus at the Veteran's October 2010 intake evaluation.  The November 2010 VA examiner also noted the positive and negative evidence of lupus in service, though he appears satisfied that Raynaud's disease included the associated symptoms.  

In short, there are test results and clinical observations consistent with a diagnosis of SLE.  No provider has offered a sufficiently definitive finding, supported by evidence of record and a clear medical rationale, that lupus is not in fact present.  Further investigation is therefore required.

The Veteran and his representative have urged scheduling of an independent medical evaluation to settle the matter.  However, in light of past contrary test results, and the absence of recent testing, the Board concludes that the Veteran would be better served by undergoing a physical examination and a battery of any required tests, instead of obtaining an opinion based on evidence already of record, at this time.

Right Calf Muscle Weakness and Numbness

The Veteran is currently rated 0 percent disabled for residuals of the popliteal artery release surgery performed on the right lower extremity.  The Diagnostic Code applicable to the underlying disability was determined to be Code 7112, for aneurysm of any small artery.  A 0 percent evaluation is assigned when such is asymptomatic.  When symptoms are present, or following corrective surgery, an evaluation is assigned based on the affected body system and function.  38 C.F.R. § 4.104, Code 7112, Note.  Accordingly, the RO then applied an appropriate Code reflecting the reported symptomatology; this is reflected by the hyphenated Code shown on the rating code sheet as 7112-5311.  38 C.F.R. § 4.27.  Code 5311, for Muscle Group XI, includes consideration of calf impairment.  38 C.F.R. § 4.7.

Repeated VA examinations, outpatient treatment reports, and the statements of the Veteran reflect complaints of weakness, a lowered fatigue threshold, and pain in the right calf, even after a minimum of activity.  These correspond to cardinal signs of muscle injury, as identified in VA regulations.  38 C.F.R. § 4.56(b).  Additionally, however, care providers and the Veteran report an area of numbness around the surgical scar of the calf.  This symptom is not accounted for by Code 5311, and the Veteran has argued that an additional compensable evaluation is warranted under a neurological Code governing the calf and foot; he suggests Code 8524, for impairment of the internal popliteal, or tibial, nerve.  38 C.F.R. § 4.124a; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Simultaneous evaluations for muscle and neurological disabilities are prohibited, unless the functions affected are entirely different.  38 C.F.R. § 4.55(a).  Here, the record is insufficient for determining exactly what disability manifestations are, or may be, attributable between damage to Muscle Group XI and a nerve or nerves of the right lower extremity.  Examination is required to clearly delineate such; additionally, the nerve involved must be identified to permit accurate selection of an applicable diagnostic code.

Accordingly, the case is REMANDED for the following action:

1.  Obtain complete VA treatment records from the medical center in Denver, CO, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of December 2010 to the present.

2.  Schedule the Veteran for a VA Infectious, Immune, and Nutritional Disabilities examination.  All necessary testing must be accomplished in connection with the examination.  The claims file must be reviewed by the examiner in conjunction with the examination.  

The examiner must opine as to whether or not a current diagnosis of systemic lupus erythematous (SLE) is warranted.  The examiner should state whether it is at least as likely as not (a probability of 50 percent or greater) such condition (or a precursor) first arose during active military service, or is otherwise caused by military service.  

A full and complete rationale for any opinion expressed is required.  

3.  Schedule the Veteran for VA muscle and peripheral nerves examinations.  The claims file must be reviewed by the examiner in conjunction with the examination.  

The examiner(s) must fully and clearly identify all current residuals of the Veteran's right popliteal artery surgery.  Muscular impairment and neurological sensory and motor impacts must be specifically discussed, to include commentary on the functional impact, if any, of noted numbness and weakness of the right calf.  The specific nerves affected must be identified.

4.  Review the claims file to ensure that all of the foregoing requested development is completed and arrange for any additional development indicated.  Then readjudicate the claims on appeal.  If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

The appellant 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).




______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs