Citation Nr: 1313147 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 06-07 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for right knee meniscectomy with arthritis prior to May 4, 2004. 2. Entitlement to a disability evaluation in excess of 10 percent for right knee instability prior to May 4, 2004. 3. Entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to April 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The claim was most recently before the Board in August 2010. The August 19, 2010 Board decision denied entitlement to a disability evaluation in excess of 10 percent for right knee meniscectomy with arthritis prior to May 4, 2004, and also denied entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005. The Veteran appealed the August 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 24, 2012 memorandum decision, the Court vacated the Board's August 19, 2010 decision. The February 24, 2012 memorandum decision essentially stated, in pertinent part, that VA must specifically discuss whether the Veteran "merited an increased rating under DC 5257 or an additional rating under DC 5259" when adjudicating the Veteran's claim. In October 2008 the Veteran was afforded a hearing before a Veterans Law Judge (VLJ) that is no longer employed by the Board. Consequently, in March 2012, the Board advised the Veteran by letter that the law requires that the VLJ who conducts a Board hearing on appeal must participate in any decision on that appeal. 38 C.F.R. § 20.707 (West 2002). The letter indicated that, if the Veteran did not respond within 30 days from the date of the letter, the Board would assume that the Veteran did not want another hearing and would proceed accordingly. As the Veteran did not respond to this letter, no new hearing will be provided in this matter. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board observes that the Veteran is already in receipt of TDIU. The issue of entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005 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 1. Even in considering his complaints of pain and functional impairment, the Veteran's service-connected right knee disability did not result in a limitation of flexion to 45 degrees or limitation of extension to 10 degrees for the period prior to May 4, 2004. 2. From September 29, 2002, to May 3, 2004, the Veteran's service-connected right knee disability resulted in severe instability. (CONTINUED NEXT PAGE) CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent prior to May 4, 2004, for right knee meniscectomy with arthritis have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5259, 5260, 5261 (2012). 2. The criteria for a 30 percent rating for right knee instability, for the period from September 29, 2002 through May 3, 2004, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA applies in the instant case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence, including that dated in May 2004, April 2006, September 2008, and February 2009 the Veteran was informed of the evidence and information necessary to substantiate the increased rating claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. 38 U.S.C. § 5103(a). The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disability and the effect that his service-connected right knee disability has on his employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). In September 2008 the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the increased rating claim such that the essential fairness of the adjudication is not affected. Duty to Assist The Veteran's service treatment records are associated with the claims file as are identified VA and private medical records. Records from the Social Security Administration are on file as well. Neither the Veteran nor his representative have referenced any other pertinent, obtainable evidence that remains outstanding. During the October 2008 Board hearing, to assist the Veteran, the VLJ asked questions to help direct the Veteran's testimony, and specifically asked the Veteran for details concerning nature and history of his right knee disability and medications taken to alleviate right knee pain. These actions fulfilled the duties under 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran did not undergo a VA examination prior to his May 2004 right total knee replacement. Given the fact that rating in question pertains to the state of his knee prior to that surgery, and it has been nearly nine years since that surgery was conducted, no useful purpose would be served at this juncture in obtaining a VA examination to address the state of his knee at that time. The evidence, while limited, sufficiently describes the state of his right knee prior to the surgery to allow the Board to rate the disability. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's claim for an increased rating for service-connected right knee disability was received on September 29, 2003. Prior to the June 2004 rating decision, the Veteran's service-connected right knee disability had been rated 10 percent disabling, using Diagnostic Code 5261, for right knee meniscectomy with arthritis, and as 10 percent disabling, using Diagnostic Code 5257, for slight right knee instability. The June 2004 rating decision continued the 10 percent rating under Diagnostic Code 5257, but recharacterized the right knee meniscectomy with arthritis as status post total right knee replacement, rated using Diagnostic Code 5055. The RO assigned a 100 percent evaluation as of May 4, 2004 and a 30 percent evaluation as of July 1, 2005. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis 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. Standard motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A 10 percent evaluation is for application where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees, and a 30 percent rating applies where flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limitation of leg extension. Under that Code section, a 10 percent evaluation is for application where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. As for Diagnostic Code 5257, a 10 percent rating contemplates slight knee impairment due to recurrent subluxation or lateral instability. A 20 percent rating contemplates moderate impairment due to recurrent subluxation or lateral instability, and a maximum 30 percent rating is warranted for severe impairment of the knee. Under Diagnostic Code 5258, a 20 percent evaluation, the highest and only rating available under that schedular provision, may be assigned where there is evidence of dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. Under Diagnostic Code 5259, symptoms associated with the removal of semilunar cartilage warranted a 10 percent rating. Under Diagnostic Code 5262, a 20 percent evaluation is for assignment for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent evaluation is for assignment with marked knee or ankle disability. VAOPGCPREC 9-2004 (September 17, 2004) holds that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Further regarding the question of entitlement to separate evaluations, VAOPGCPREC 23-97 provides that a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 9-98. (CONTINUED NEXT PAGE) Analysis A September 2003 private examination report indicates significant osteoarthrosis of the medial compartment of the right knee by X-rays, with almost full extension, 130 degrees of flexion, and "exquisite" medial joint line tenderness with a positive McMurray's test for pain. A letter from a private hepatologist, dated in October 2003, noted "severe knee arthritis" and recommended that the Veteran undergo knee replacement. X-rays from November 2003 showed "fairly severe" medial compartment degeneration, while a physical examination showed swelling in the knee with tenderness along the medial joint line and "significant varus deformity." A total knee replacement was performed on May 4, 2004. I. Right knee meniscectomy with arthritis prior to May 4, 2004. Prior to May 4, 2004, the Veteran's right knee flexion was limited to no less than 130 degrees. The evidence has shown full right knee extension. Based on the above findings, the criteria are not met for the next-higher rating, 20 percent, under Diagnostic Code 5260 or 5261, at any time during the rating period on appeal. Indeed, for the applicable period, the only recorded range of motion would not even support the assignment of compensable ratings under those diagnostic codes. In so finding, the Board has considered additional limitation of function due to factors such as pain, weakness, incoordination and fatigability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). While right knee pain and swelling was noted, the findings do not indicate a disability picture comparable to having right knee flexion limited to 30 degrees or right knee extension limited to 15 degrees as is necessary in order to achieve a 20 percent evaluation under Diagnostic Code 5260 or 5261. The Board observes that although pain may cause functional loss, pain in and of itself does not constitute functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The evidence at that time simply does not demonstrate measurable functional loss that would equate to a loss of flexion and/or extension that would support the assignment of a higher disability rating. The Board acknowledges VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, in the present case, the medical findings previously discussed do not establish loss of either right knee flexion or right knee extension to a compensable degree, and separate evaluations pursuant to VAOPGCPREC 9-2004 are not appropriate. There is no evidence from this period of right knee ankylosis (Diagnostic Code 5256) or dislocated semilunar cartilage of the right knee (Diagnostic Code 5258). The Veteran retained a nearly full range of motion of the right knee, which would negate a finding of ankylosis. Consideration has also been given as to whether the Veteran had any abnormalities of the right tibia and fibula (Diagnostic Code 5262). However, as malunion of the tibia and fibula were not shown on X-ray at that time (only the presence of arthritis), a rating under that diagnostic code would be inappropriate. As noted, the February 24, 2012 Memorandum Decision essentially stated that VA must specifically discuss whether the Veteran is entitled to an additional rating under Diagnostic Code 5259, as, according to the Memorandum Decision, Diagnostic Code 5259 may be appropriate to consider because neither Diagnostic Code 5257 nor Diagnostic Code 5261 addresses pain on use beyond that resulting in either instability or limited leg extension. The Board finds, however, that an additional rating under 5259 is not appropriate in this case. The Veteran is in receipt of a 10 percent rating for right knee arthritis that would be rated as noncompensable were it rated solely on range of motion and not for the pain arising from the arthritis, as directed by such authority as Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). In other words, the symptoms of the removal would equate to painful motion with functional loss and instability. He is already receiving compensation for those symptoms. Assigning an additional rating of 10 percent for right knee pain under Diagnostic Code 5259 would result in duplicate compensation for the same manifestation. Esteban v. Brown, 6 Vet. App. 259, 261 (1994); 38 C.F.R. § 4.14. In sum, a rating in excess of 10 percent prior to May 4, 2004, for right knee meniscectomy with arthritis, is not warranted. II. Right knee instability As for right knee instability, the September 2003 private examination report indicated a positive McMurray's test, and the October 2003 private physician had recommended that the Veteran undergo right knee replacement. X-rays from November 2003 showed "fairly severe" medial compartment degeneration. Further, and of crucial import, there was evidence of a significant varus deformity. In the Board's view, such findings warrant a 30 percent rating under Diagnostic Code 5257 for severe impairment of the knee. It is clear to the Board that the Veteran's private physicians could see that prior to May 4, 2004 the Veteran's right knee disability had essentially reached the point where the right knee total replacement was inevitable. A 30 percent rating is the maximum rating available under Diagnostic Code 5257. The Memorandum Decision stated that if the Board determines that increased or additional ratings are warranted for any time prior to the Veteran's right knee replacement, it should consider the appropriate effective date given the finality of the 2001 and 2002 RO decisions. The record includes a December 2001 rating decision that assigned a 20 percent combined rating for the Veteran's right knee disability. Notice of that decision was provided to the Veteran on December 14, 2001. He disagreed with that decision and was provided a statement of the case (SOC) on November 26, 2002. Such meant that he had until January 26, 2003 to perfect his appeal. See 38 C.F.R. § 20.302. He did not. The Veteran subsequently filed the present claim for an increased rating for service-connected right knee disability on September 29, 2003. The rating period on appeal would normally be from September 29, 2002, or one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2). Here, resolving all doubt in his favor, the Board finds that there is sufficient evidence demonstrating an increase in severity of the Veteran right knee disability when compared to the evidence considered at the time of the December 2001 rating decision and November 2002 SOC. The Veteran's 30 percent rating for right knee instability is effective September 29, 2002. Conclusion In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his right knee disability. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his right knee disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's right knee disability has been demonstrated by the medical evidence that existed at that time. The medical findings directly address the criteria under which the Veteran's right knee disability is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria 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 so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's right knee disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by service-connected right knee disability. The Veteran's symptoms such as pain, instability, and limitation of motion are specifically enumerated under the applicable Diagnostic Codes. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A disability evaluation in excess of 10 percent prior to May 4, 2004, for right knee meniscectomy with arthritis is denied. A 30 percent rating for right knee instability, for the period from September 29, 2002 through May 3, 2004, is granted, subject to the applicable law governing the award of monetary benefits. REMAND As for the issue of entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005, the Memorandum Decision stated that the Board had failed to discuss the possibility, raised by a private examiner in 2005 and 2006, that the Veteran had developed a secondary condition, osteonecrosis, as a result of his knee replacement. The Court also found that the Board had failed to provide an adequate statement of reasons or bases that explains why the Board found the 2009 VA examination more probative than other evidence of record. Based on the foregoing, the Board finds that the Veteran should be afforded a VA examination that both addresses the osteonecrosis matter discussed by the Court and that also provides the Board with current findings regarding the severity of the Veteran's right knee disability. 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. The AOJ should request all VA medical records (not already of record) pertaining to examination or treatment of the Veteran's right knee dated subsequent to December 2010 and associate them with the claims file (or Virtual VA file). 2. The Veteran should be afforded a VA examination to assess the nature and severity of his service-connected right knee disability. All necessary tests and studies, including range of motion studies, should be conducted. The report should discuss any weakened movement, excess fatigability with use, incoordination, painful motion, or pain with use, and provide an opinion as to how those factors result in any additional limitation of function. The examiner should specifically address the Veteran's functional loss due to flare ups and offer an opinion as to whether there are additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. The examiner should state whether the Veteran's right knee disability and replacement is productive of chronic residuals of severe painful motion or weakness in the right leg. The examiner must state whether the Veteran has right knee osteonecrosis, and, if so, whether the osteonecrosis is part and parcel of the Veteran's service-connected right knee disability. The functional effect/impairment of the osteonecrosis, if such exists and is found to be related to the service connected right knee disability, should be discussed. Conversely, if osteonecrosis is shown but found to be a separate and distinct disability that is unrelated to the Veteran's connected right knee disability, the examiner should attempt to delineate, if possible, the symptoms attributed solely to the osteonecrosis. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should then readjudicate the issue of entitlement to a disability evaluation in excess of 30 percent for status post total right knee replacement from July 1, 2005. If the benefit sought is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and the representative should be afforded the appropriate period to respond. The Veteran 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 A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs