Citation Nr: 1303371 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 06-27 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for a left knee disability, status post medial and lateral partial meniscectomy with residual scars. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from March 1952 to July 1955. This matter comes before the Board of Veterans' Appeals (Board) from March 2004 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a September 2010 decision, the RO increased the evaluation for the Veteran's left knee disability, status post medial and lateral partial meniscectomy with residual scars, from 10 to 20 percent. The Veteran has also been awarded a 100 percent evaluation for the left knee from September 2, 2008 through October 31, 2008 for convalescence under 38 C.F.R. § 4.30. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in October 2012. A transcript is of record. Please note 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). The issue of entitlement to compensation under 38 U.S.C.A. § 1151 for a low back disability 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. FINDINGS OF FACT The Veteran's left knee disability, status post medial and lateral partial meniscectomy with residual scars, is characterized by a full range of motion with tenderness and pain. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the left knee disability, status post medial and lateral partial meniscectomy with residual scars, are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5258-5010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in March 2009 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, VA treatment records and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with multiple VA examinations, the reports of which have been associated with the claims file, in conjunction with his claim. The examiners provided well-reasoned rationales for their opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claim for an increased rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2012). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). Where an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. However, consideration of the appropriateness of "staged rating" is also required. Hart v. Mansfield, 21 Vet. App. 505 (2007). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 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. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 30 degrees is rated 20 percent disabling, and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. The Veteran is seeking a rating in excess of 20 percent for a left knee disability, status post medial and lateral partial meniscectomy with residual scars. He has been evaluated under Diagnostic Codes 5258 and 5003. At February 2008 VA treatment the Veteran rated his left knee pain as seven out of ten and said it was ten out of ten in the morning. The knee had no effusion and range of motion was 0 to 120 degrees. There was good patella tracking and sensation was intact. X-rays showed mild to moderate degenerative arthritis of the left knee. The Veteran was diagnosed with symptomatic left knee degenerative joint disease. In May 2008 the Veteran complained of continued left knee pain. September 2008 VA treatment records show that the Veteran underwent a left knee arthroscopy. At December 2008 VA treatment he was encouraged to continue walking and to take Flexeril as prescribed for cramping. VA treatment notes through July 2010 show that the Veteran continued to have pain in the left knee. In August 2009 and September 2009 he had three injections in the left knee for pain relief. He continued to complain of pain at December 2009 treatment. The Veteran had an examination arranged through VA QTC Services in April 2010. He said that during flare-ups, which occurred as often as daily and lasted for 24 hours, the pain was ten out of ten. The flare-ups were precipitated by physical activity and sometimes occurred spontaneously. The pain was alleviated with Vicodin. During flare-ups he had difficulty with prolonged sitting, laying down and standing. The Veteran also reported difficulty with standing and walking, including with use of a cane. He reported not having any incapacitation in the past 12 months due to his left knee. On examination the left knee had three small scars that were asymptomatic and did not cause limitation of function. The Veteran was unable to stand straight for extended periods without support, and he walked with an antalgic gait and an unsteady tandem gait. He required a brace on the left knee and a cane for ambulation but did not require crutches, corrective shoes, a wheelchair, a prosthesis or a walker. Range of motion was flexion to 90 degrees with pain at 45 degrees and flexion to 70 degrees with pain at 20 degrees on repetitive use. Extension was to 0 degrees with pain at 45 degrees and was to 0 degrees on repetitive use. After repetitive use, joint function was additionally limited by pain, fatigue, weakness, lack of endurance, and pain and was not additionally limited by incoordination. Stability tests were within normal limits and there was no subluxation. The diagnosis was scars, s/p medial and lateral partial meniscectomy with moderate degenerative joint disease. The subjective factors were the history of knee pain and the objective factors were the scars on the left knee. The Veteran is noted to be able to do simple household chores. In November 2011 the Veteran underwent another examination arranged through VA QTC services. He reported flare-ups as often as three times a week that lasted for two hours that he rated as an eight out of ten in intensity. Flare-ups were precipitated by physical activity and were alleviated by Hydrocodone. During flare-ups he had limitations of motion and difficulty with standing and walking. Treatment was Hyalgan injections, physical therapy, pain medication, and use of a brace. There had not been any incapacitation in the past 12 months due to the left knee and there had not been a left knee replacement. On examination, the left knee had scars that were asymptomatic and did not cause limitation of function. The Veteran used a cane to walk due to bilateral knee pain, and he did not require a brace, crutches, corrective shoes, a wheelchair, a prosthesis, and a walker. The left knee had tenderness and pain with range of motion. There was no edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. The left knee had crepitus and there was no genu recurvatum, locking pain or ankylosis. Range of motion was noted to be within normal limits, including on repetition. Flexion was to 140 degrees with pain at 90 degrees and extension was to 0 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Stability tests were within normal limits. X-rays showed degenerative arthritic changes. The diagnosis was left knee osteoarthritis, status post medial and lateral partial meniscectomy with scar. The examiner did not feel it was possible to distinguish the effect of the left knee disability and of age on the Veteran's ability to work because age would significantly affect his ability to perform physical and sedentary employment activities. (The Veteran was born in 1935.) The left knee affected his ability to perform yard work, cleaning, and shopping. Eating, grooming, bathing, toileting, communication and social cognition were not affected by the left knee disability. At April 2011 VA treatment the Veteran said that the left knee pain was greater than the right knee pain. It was noted that the knees had improved significantly since finishing the previous series of Hyalgan injections. The Veteran testified at the October 2012 hearing that he still had knee pain for which he took medication and had injections. He was in the midst of a three-shot series and had had no lasting improvement thus far. There was pain with range of motion, and he had fallen down at times. The Veteran could walk for three blocks at a time. The Veteran's left knee has been rated as 20 percent disabling under Diagnostic Codes 5258 and 5010. An evaluation greater than 20 percent is not available under either Diagnostic Code. 38 C.F.R. § 4.71a. The evidence does not show that the Veteran has left knee ankylosis; recurrent subluxation or lateral instability; and impairment of the tibia and fibula. Therefore, ratings under Diagnostic Codes 5256, 5257, and 5262 are not for consideration. See 38 C.F.R. § 4.71a. An evaluation greater than 10 percent is not available for cartilage, semilunar, removal of, symptomatic, and genu recurvatum under Diagnostic Codes 5259 and 5263. Id. There is no evidence demonstrating that the Veteran's service-connected left knee disability meets the criteria for separate compensable evaluations under Diagnostic Codes 5260 and 5261 for limitation of flexion or extension. See VAOPGCPREC 9-2004. The examination results do not show they were limited to 45 degrees flexion or 10 degrees extension, as required for 10 percent evaluations. See 38 C.F.R. § 4.71a, DCs 5260, 5261. At their worst, flexion was limited to 90 degrees and extension was to 0 degrees, which is full extension. The record shows that the flexion and extension in the left knee are essentially normal. See 38 C.F.R. § 4.71, Plate II. As such, the range of motion in the Veteran's knees has exceeded the range of motion for even a non compensable rating, as flexion was not shown to be limited to 60 degrees and Veteran consistently demonstrated full extension in the left knees. The next question is whether an additional rating should be given for functional loss due to pain under 38 C.F.R. § 4.40 (including pain on use or during flare-ups) and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. These regulatory provisions must be considered in cases involving joints rated on the basis of limitation of motion. See De Luca v. Brown, 8 Vet. App. 202 (1995). There is no showing that functional loss warrants a higher rating. At the January 2011 examination, left knee function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. At the April 2010 VA examination, left knee function was additionally limited by pain, fatigue, weakness, lack of endurance, and pain and was not additionally limited by incoordination. On range of motion testing , flexion was limited to 70 degrees. However, it has not been shown that the Veteran's pain sufficiently limited the range of motion in either knee such that a rating in excess of 10 percent would be warranted for either knee based on limitation of motion. See 38 C.F.R. § 4.71a, DCs 5260, 5261. At the April 2010 examination there was pain at 45 degrees of flexion and 45 degrees of extension. 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). The April 2010 examiner felt that the Veteran could still perform simple household chores and the January 2011 examiner did not feel that joint function was additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Therefore, an evaluation in excess of 20 percent for the left knee disability is not justified under 38 C.F.R. §§ 4.40 and 4.45, and the decision in DeLuca. The Board has also considered whether a referral for an extraschedular evaluation is warranted with regard to the Veteran's left knee disability, status post medial and lateral partial meniscectomy with residual scars, increased rating claim. The threshold factor for extraschedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. See VAOGCPREC 6-1996 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology and provides for additional or more severe symptoms with regard to the Veteran's left knee disability, status post medial and lateral partial meniscectomy with residual scars, than are currently shown by the evidence; thus, the Board finds that the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Consequently, referral for extraschedular consideration is not warranted. The Board also has considered whether the Veteran is entitled to "staged" ratings for his service-connected left knee disability, status post medial and lateral partial meniscectomy with residual scars. Based upon the record, at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. Additionally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. However, there must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In the instant case, the Veteran has previously been denied a TDIU and the record does not reasonably raise a new claim for a TDIU. The preponderance of the evidence is against the claim. There is no doubt to be resolved, and a rating greater than 20 percent for a left knee disability, status post medial and lateral partial meniscectomy with residual scars, is not warranted. See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER A rating in excess of 20 percent for a left knee disability, status post medial and lateral partial meniscectomy with residual scars, is denied. REMAND The Veteran testified at the October 2012 hearing that he hurt his back when he slipped in August 1997 on water in a patio area while receiving treatment at the VA Medical Center in Long Beach, California. He was treated for the fall at the facility's emergency room. The record contains x-rays of the Veteran's back from August 1997. However, there are no VA treatment records, emergency room or otherwise, from August 1997 regarding the fall itself. Pursuant to VA's duty to assist, VA has an obligation to obtain relevant records in the custody of a federal agency. 38 C.F.R. § 3.159(c)(2). Therefore, any August 1997 VA treatment records should be sought. At private treatment in December 2000, the Veteran reported that he noticed back pain after slipping and falling on water on a patio at a VA hospital. The orthopedist wrote that the Veteran sustained significant injuries to his lumbar spine as direct result of the August 1997 slip and fall accident. The Veteran has since received treatment on a regular basis related to his low back. A VA examination is necessary to ascertain the relationship between the Veteran's low back disability and the August 1997 slip and fall accident at a VA facility. VA treatment records to March 2011 have been associated with the claims file. The RO should attempt to obtain all relevant VA treatment records dated from March 2011 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain the Veteran's VA treatment records from August 1997 from the Long Beach VA Medical Center, and associate them with the claims file. 2. Obtain the Veteran's VA treatment records from March 2011 to the present, and associate them with the claims file. 3. After completing the above development, schedule the Veteran for a VA examination to determine the current nature, onset and likely etiology of any low back disability found to be present. The claims file should be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not that the Veteran's low back disability is related to or had its onset from the August 1997 slip and fall accident at a VA facility. In offering this assessment, the examiner's discussion should include the August 1997 lumbar spine x-ray results, any additional August 1997 treatment records that have been obtained, and December 2000 private orthopedic treatment. A detailed rationale for any opinion expressed should be set forth. 4. Readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, the RO should issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. 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. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs