Citation Nr: 1314654	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  10-44 909	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating higher than 10 percent for residuals of internal derangement of the left knee.

2.  Entitlement to an initial rating higher than 10 percent for a right knee disability, to include degenerative changes.

3.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran had active service from October 1968 to October 1972. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 RO rating decision, which denied a disability rating higher than 10 percent for the left knee disability.  This decision also granted service connection for a right knee disability and assigned a disability rating of 10 percent effective September 28, 2009.  The Veteran appealed for higher ratings.  

In March 2013, the Veteran testified at a Board hearing at the RO via videoconference.  Following the hearing, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO.  38 C.F.R. § 20.1304(c) (2012).

Following left knee arthroscopy, a RO decision in October 2011 granted a temporary total rating based upon convalescence under 38 C.F.R. § 4.30, from September 20, 2011, to December 1, 2011, and assigned a separate rating for surgical scar.  In a rating decision in August 2012, the RO granted a temporary total rating based upon convalescence following right knee arthroscopy, effective from May 15, 2012 to August 1, 2012, and assigned a separate rating for surgical scar.   

The record shows that Veteran is currently unemployed.  At the March 2013 hearing he asserted that he was unemployable due to the service-connected bilateral knee disability.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  As such, this issue is properly before it for appellate consideration and, as such, has been included on the title page.

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 claim for entitlement to a TDIU claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Throughout the appeal, when viewed in the light most favorable to the Veteran, the evidence of record demonstrates that his left knee disability, to include anterior cruciate ligament deficiency, more closely approximates severe instability. 

2.  Prior to January 25, 2013, the service-connected left knee disability was manifested by arthritis, chronic pain, flexion exceeding 60 degrees and normal extension.

3.  Effective January 25, 2013, the Veteran's left knee is manifested by limitation of extension to not less than 15 degrees and limitation of flexion to 45 degrees.

4.  Throughout the entire appeal period, the Veteran's right knee disability has been manifested by complaints of pain, with pain on motion and tenderness on palpation; flexion has been limited, at most, to 120 degrees and to 10 degrees of extension with no findings of malunion of the tibia or fibula. 

5.  Effective January 25, 2013, when viewed in the light most favorable to the Veteran, the evidence of record demonstrates that his right knee disability is productive of moderate recurrent subluxation or lateral instability; however, the most probative evidence is against a finding of severe right knee instability.

CONCLUSIONS OF LAW

1.  The criteria for a 30 percent disability rating secondary to lateral instability of the left knee, have been met throughout the appeal period.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Codes 5257 (2012). 

2.  Prior to January 25, 2013, the criteria for entitlement to a separate 10 percent rating for left knee arthritis have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003-5010 (2012); VAOPGCPREC 23-97.

3.  Effective January 25, 2013, the Veteran's left knee warrants a 20 percent rating, but no higher, for limitation of extension, and a separate 10 percent rating, but no higher, for limitation of flexion.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012).

4.  The criteria for an initial rating higher than 10 percent degenerative changes of the right knee have not been met.  §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5262-5260 (2012). 

5.  Effective January 25, 2013, the criteria for a separate 20 percent rating secondary to subluxation and instability of the right knee, have been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The notice requirements were accomplished in a letter sent in October 2009.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).  Thereafter, the claims were readjudicated in the October 2010 statement of the case.

The Veteran was afforded a hearing before the Board, at which he presented oral testimony in support of his claims and also introduced additional documents for inclusion into the evidence already of record.  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 Veterans Law Judge 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 Veterans Law Judge noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claims for benefits herein decided.  In addition, the Veterans Law Judge 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 claims, to include medical opinions and records in support of the claims.  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 any prejudice been identified in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims.  As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The claimant was provided the opportunity to present pertinent evidence.  The Virtual VA file, and available private and VA treatment records have been obtained.  In addition, he has been provided with VA examinations in connection with his present claims.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.

Higher Ratings

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 

Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999).  The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Thus, the analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40  and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

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

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

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

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

The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just.  38 C.F.R. § 4.6 (2012).  It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2012). 

Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe.  38 C.F.R. § 4.71a, Diagnostic Code 5257. 

Malunion of the tibia and fibula of a leg warrants a 10 percent rating when it results in slight knee or ankle disability.  A 20 percent rating requires that malunion results in moderate knee or ankle disability.  A 30 percent rating requires that malunion results in marked knee or ankle disability.  Nonunion of the tibia and fibula warrants a 40 percent rating if there is loose motion requiring a brace.  38 C.F.R. § 4.71a, Diagnostic Code 5262. 

Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved.  When there is arthritis and at least some limitation of motion, but the limitation of motion would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each affected major joint.  38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. 

Diagnostic Code 5020 provides that synovitis shall be rated based upon limitation of motion of the affected parts, or as arthritis.  38 C.F.R. § 4.71a, Diagnostic Code 5020. 

Limitation of flexion of a leg to 60 degrees warrants a 0 percent rating.  A 10 percent rating requires that flexion be limited to 45 degrees.  A 20 percent rating requires that flexion be limited to 30 degrees.  A 30 percent is warranted when flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Limitation of extension of a leg to 5 degrees warrants a 0 percent rating.  A 10 percent rating requires that extension be limited to 10 degrees.  A 20 percent rating requires that extension be limited to 15 degrees.  A 30 percent rating requires that extension be limited to 20 degrees.  A 40 percent rating requires that extension be limited to 30 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261. 

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II. 

In VAOPGCPREC 23-97, the General Counsel  held that a claimant who has arthritis and instability of the knee may be rated separately under DC 5003 and DC 5257, and that evaluation of a knee disability under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14 (2007).  VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also Esteban v. Brown, 6 Vet. App. 259 (1994).  However, a separate finding must be based on additional disability. 

In VAOPGCPREC 9-04, the General Counsel held that separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee.  Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.  VAOPGCPREC 
9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005).

The Veteran underwent a VA examination in March 2010.  He complained of progressive left knee pain with giving out and locking.  Reportedly the Veteran had decreased his activities and work hours due to left knee instability.  The Veteran also complained of progressive right knee pain.  It was noted that he had previously undergone a left knee arthroscopic partial meniscectomy.  Current treatment consisted of pain medication, topical creams and a knee brace for the left knee.  On examination, the left knee was shown to be productive of pain, stiffness, crepitus, grinding, tenderness, flare-ups in pain on a weekly basis lasting hours or days, weakness, decreased joint motion, giving way, and locking several times a week.  There was no instability, incoordination, or episodes or dislocation or subluxation.  With regards to the right knee, the examiner noted decreased joint motion, crepitus, tenderness, grinding, clicking, and pain with flare-ups on a weekly basis lasting hours.  There was no instability, incoordination, or episodes or dislocation or subluxation.  The Veteran was able to stand for 15 to 20 minutes and could walk 1/4 mile.  The Veteran reported multiple falls due to the left knee giving out, particularly when stepping onto an uneven or wet surface, on stopping from walking, or when turning a certain way.  The Veteran was observed to put more weight on the right knee.  Flexion of the left knee was to 140 degrees with pain and extension was normal at zero degrees.  Flexion of the right knee was to 135 degrees with pain and extension was normal at zero degrees.  There was no additional limitation of motion with repetitive use.  There was no ankylosis.  X-rays of the knees revealed mild degenerative changes.  The Veteran reported reduced work hours due to knee pain.  He was employed part-time as a handyman.  The examiner diagnosed mild degenerative disease of the right and left knee, with past left knee partial medial meniscectomy.  The examiner determined that the knee conditions had a significant effect on the Veteran occupationally due to decreased mobility, problems with lifting, lack of stamina, decreased strength and lower extremity pain.  Reportedly, the Veteran had turned down jobs due to his bilateral knee condition.  

A February 2011 MRI of the left knee revealed that the majority of the anterior cruciate ligament was absent.  The Veteran underwent left knee arthroscopy, in September 2011, and right knee arthroscopy in May 2011.  As noted in the Introduction, by a rating decision in October 2011 the RO granted a temporary total rating based upon convalescence  under 38 C.F.R. § 4.30, from September 20, 2011 through December 1, 2011, and assigned a separate rating for surgical scar; and in a rating decision in August 2012, the RO granted a temporary total rating based upon convalescence following right knee arthroscopy, effective from May 15, 2012 to August 1, 2012, and assigned a separate rating for surgical scar.   

The Veteran was afforded a VA medical examination on January 25, 2013.  He complained of bilateral knee pain with daily flare-ups of pain, buckling resulting in swelling, and limited standing and walking capabilities.  Right knee flexion was 120 degrees and extension was to 10 degrees with pain.  Left knee flexion was to 45 degrees and extension was to 15 degrees with pain.  There was pain on repetitive motion with additional limitations and functional loss.  The examiner noted pain, tenderness, swelling, deformity, disturbance of locomotion, and incoordination in both knees.  Additionally, the examiner noted a history of a meniscus condition with meniscal tear, frequent episodes of joint locking, pain and effusion, bilaterally.  The left knee exhibited more movement than normal with instability due to lack of the anterior cruciate ligament.  There was anterior instability at 2+.  The Veteran regularly wore a brace.  The examiner noted a history of bilateral meniscectomy with residual defect in the left articular cartilage damage and anterior cruciate ligament tear with chronic swelling and giving way, which could result in the need for total knee joint replacement.  The examiner indicated that arthroscope of the left knee showed full thickness defect of articular surface and tear of anterior cruciate ligament.  With regards to the right knee, the examiner noted moderate patellar subluxation or dislocation.  The examiner determined that the condition rendered the Veteran unable to walk on uneven surfaces due to the anterior cruciate ligament and should avoid ladders, stairs, and walking greater than 10 to 15 minutes.  The right knee had overuse syndrome with chronic effusion and synovitis.  

At the March 2013 personal hearing, the Veteran testified that his left knee symptoms had not improved following the May 2011 surgical procedure. Specifically, his knee continued to give way and buckle causing him to fall.  He described his left instability as severe, he required a left knee brace at all times when outside his home, because he was unable to step on uneven ground without falling.  Reportedly, the condition had worsened and severely limited his physical activities.  The Veteran stated that his right knee was more painful than the left.  He also noted that while on DBQ examination the examiner had characterized instability of the right knee as moderate, and worse in the left knee.  The Veteran testified that he had stopped working 2 years earlier due to his knee disability.  He reported an occupational background doing construction work.  

Because of the potential for separate ratings for separate periods of time based on facts found, the Board will separately rate the service-connected right and left knee disabilities based on the VA examinations in March 2010 and January 2013.

Initially, the Board notes that the Veteran's left knee disability was assigned a 10 percent disability rating under Diagnostic Code 5257, for knee impairment with recurrent subluxation or lateral instability.  The Veteran seeks higher ratings.  

Throughout the period on appeal, the evidence shows that the Veteran complained of progressive left knee pain with daily flare-ups, giving out, locking, buckling resulting in swelling, tenderness swelling, deformity, disturbance of locomotion, and incoordination.  The Veteran regularly wore a brace.  On examination in January 2013, the left knee exhibited more movement than normal with instability due to lack of the anterior cruciate ligament.  There was anterior instability at 2+.  The examiner noted a history of bilateral meniscectomy with residual defect in the left articular cartilage damage and anterior cruciate ligament tear with chronic swelling and giving way, which could result in the need for total left knee joint replacement.  The examiner indicated that arthroscope of the left knee showed full thickness defect of articular surface and tear of anterior cruciate ligament.  Throughout out the period on appeal, the evidence shows that the condition rendered the Veteran unable to walk on uneven surfaces due to the anterior cruciate ligament and should avoid ladders, stairs, and walking greater than 10 to 15 minutes.  Consistent with this findings, at the March 2013 personal hearing, the Veteran testified that his left knee continued to give way and buckle causing him to fall despite having recently undergone surgery.  He described his left instability as severe, as he required a left knee brace at all times when outside his home, because he was unable to step on uneven ground without falling.  

Based on a review of the record the Board finds that the Veteran's disability more closely approximated the criteria associated with a 30 percent disability rating for the entire period under appeal.  Again, under Diagnostic Code 5257, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent rating is warranted for severe disability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  Here, the findings from the March 2010 and January 2013 VA examination reports demonstrate that the Veteran had severe instability in his left knee due to his service-connected anterior cruciate ligament deficiency.  Given these findings, the Veteran's disability supports a 30 percent disability rating for symptoms of severe instability in the left.  See Id.  

By this decision, the Board is resolving any doubt in the Veteran's favor to award an increased rating for disability due left knee instability 30 percent over the entire appeal period.  Diagnostic Code 5257 provides a maximum 30 percent rating for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  

In considering the applicability of other diagnostic codes, the Board notes that prior to January 25, 2013, the Veteran is also entitled to a separate 10 percent disability rating for degenerative arthritis in his left knee.  X-ray evidence in this case that demonstrates that the Veteran's left knee disability is manifested by arthritis.  On VA examination in March 2010, flexion of the left knee was to 140 degrees with pain and extension was normal at zero degrees.  There was no additional limitation of motion with repetitive use.  The criteria under Diagnostic Codes 5003 and 5010 apply when limitation of motion would be noncompensable under a limitation of motion code.  38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010.  Based on the March 2010 VA examination findings, the Veteran's left knee disability was noncompensable under Diagnostic Codes 5260 and 5261, as his range of motion was well beyond required flexion limited to 60 degrees and extension limited to 5 degrees, even when considering Deluca factors. See 38 C.F.R. § 4.7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59 as applied under DeLuca, 8 Vet. App. at 204-08; 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261.  

Applicable regulations provide that, with any form of arthritis, painful motion is an important factor of disability, and it is the intention of VA's rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (1999).  VA's General Counsel  has held that, when a knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for instability of the knee, a separate rating for arthritis may be based on x-ray findings of arthritis and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Therefore, the Board finds that it is appropriate to assign a separate 10 percent evaluation for the Veteran's left knee disorder, based on painful motion of an arthritic joint.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261.  

An increased 20 percent rating is not warranted unless there is x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  In this case, the evidence does not show that the Veteran's arthritis was productive of occasional incapacitating exacerbations.  Therefore, a rating in excess of 10 percent for left knee arthritis prior to January 2013 is not warranted.

Since January 25, 2013, the evidence supports a higher rating of 20 percent based on limitation of extension.  On VA examination in January 2013, extension of the left knee was to 15 degrees, as such the criterion, extension limited to 15 degrees, for a 20 percent rating under Diagnostic 5261 was demonstrated considering functional loss due to pain and painful movement.  With any pain, extension was still not limited such that the criteria for a higher rating of 30 percent, as extension limited to 20 degrees was not shown.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Accordingly, the Veteran is entitled to a higher rating of 20 percent effective January 25, 2013.

Additionally, the Board has considered Diagnostic Code 5260 pertaining to limitation of flexion.  In this regard, the Board finds that the evidence establishes entitlement to a separate 10 percent disability rating due to limitation of flexion to 45 degrees, but no more, effective January 25, 2013.  While the Veteran had full range of left knee motion in March 2010 on VA examination January 2013 flexion of the left knee was limited to 45 degrees with pain, thus warranting the assignment of a separate 10 percent disability evaluation based on limitation of flexion.  It is noted that a higher rating is not warranted as neither the lay nor the medical evidence show that the limitation of flexion more nearly approximates limitation to 30 degrees. 

Diagnostic Code 5258 provides the rating criteria for dislocation of semilunar cartilage and Diagnostic Code 5259 provides the rating criteria for symptomatic removal of semilunar cartilage.  In this regard, the Board finds that a separate rating would not be warranted under Diagnostic Code 5258 or 5259 because while there is a history of anterior cruciate ligament tear, there is no history of semilunar cartilage involvement.  The Board also finds that Diagnostic Code 5262 (impairment of the tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable here, as the medical evidence does not show that the Veteran has any of these disabilities.  38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263.

In sum, the Board finds that the weight of the credible evidence demonstrates that the Veteran's left anterior cruciate ligament deficiency supports the criteria of a 30 percent, and not higher, for instability for the entire period under consideration. See 38 C.F.R. § 4.71a, Diagnostic Code 5257.  The evidence also supports the assignment of a separate disability rating of 10 percent based on painful motion of an arthritic joint, prior to January 25, 2013.  Effective January 25, 2013, the Veteran's left knee disability warrants a 20 percent rating, but not higher, for limitation of  extension and a separate 10 percent rating, but not higher, for limitation of flexion. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261.  

As for the right knee, by a rating decision in March 2010, the RO granted service connection for degenerative changes of the right knee and assigned a 10 percent disability rating under Diagnostic Code 5262 for impairment of the tibia and fibula. 

On examination in March 2010, there was no demonstration of malunion of the tibia and fibula and, in the judgment of the Board, no showing of moderate knee disability for a 20 percent rating under Diagnostic Code 5262.  

It appears that the right knee disability was characterized by abnormal weight bearing, knee pain and limitation of motion, and some limitations on standing and walking.  Gait was normal.  The effects of the problem on various daily activities was generally mild, with only a moderate effects on driving.  On examination on January 25, 2013, it was also determined that the right knee had overuse syndrome with chronic effusion and synovitis.  The examination reports also do not show limitation of flexion to 30 degrees (so as to warrant a 20 percent rating under Diagnostic Code 5260) or limitation of extension by 15 degrees (so as to warrant a 20 percent rating under Code 5261), even with factors of pain and use (repetitive motion) considered, for the right leg.  Rather, the most impairment during the appeal period shows that he retained function to 120 degrees for the right knee.  Moreover, VA examination have found the Veteran to have extension to at least 10 degrees with pain.  That functional level of motion does not warrant any rating in excess of 10 percent.  Consequently, the Board finds that a rating in excess of 10 percent for the right knee under either Code 5260 or 5261, or based on a combination of ratings under these two codes, is not warranted. 

Under Code 5262, a 20 percent rating would be warranted if there were malunion of the tibia or fibula with moderate knee disability.  The medical evidence shows no significant disability in the right knee prior to January 2013 and the level of knee disability is less than moderate and more nearly approximate slight, based on slight limitation of motion and pain on motion.  The Board finds, therefore, that any disability in the right knee prior to January 25, 2013, is no more than slight, and the criteria for a higher rating in accordance with Diagnostic Code 5262 are not met.  Consideration of other diagnostic codes for rating a knee disability, such as Diagnostic Codes 5256, 5258, 5259, and 5263, is inappropriate as the Veteran's leg disabilities do not include the pathology required in the criteria for those Codes of ankylosis, dislocation of the semilunar cartilage, removal of the semilunar cartilage, or genu recurvatum.  38 C.F.R. § 4.71a (2012).

Additionally, the Board finds that prior to January 25, 2013, a separate rating under a Diagnostic Code not related to range of motion, such as 5257, is not warranted since Diagnostic Code 5257 takes into account instability, which was not found on examination in March 2010.    

However, on VA examination on January 25, 2013, the Veteran complained of bilateral knee pain with daily flare-ups of pain, buckling resulting in swelling, and limited standing and walking capabilities.  The examiner noted pain, tenderness, swelling, deformity, disturbance of locomotion, and incoordination in both knees, with frequent episodes of joint locking pain and effusion, bilaterally.  The examiner specifically found moderate patellar subluxation or dislocation in the right knee.  

Accordingly, the Board finds that since January 25, 2013, a separate disability rating of 20 percent for moderate instability, in addition to the 10 percent rating under Diagnostic Code 5262, are also met.  

The Board has considered the statements of the Veteran regarding the severity of the service-connected right and left knee disabilities.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). 

In this case, the Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses, and the Board has considered these statements.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds, however, the medical evidence from the examinations during the appeal period to be more competent to identify a specific level of disability according to the appropriate diagnostic codes. 

In particular, more competent evidence concerning the nature and extent of the Veteran's right and left knee disabilities has been provided by the medical personnel who have examined the Veteran during the current appeal and who have rendered pertinent opinions in conjunction with the examinations.  The medical findings as provided in the examination reports directly address the criteria under which the service-connected disabilities are rated.  

Therefore, the Board finds the examination reports to be more probative than the Veteran's subjective evidence of complaints regarding the severity of symptomatology because they provide objective medical evidence of the manifestations of the service-connected disabilities and these findings are directly responsive to the applicable rating criteria.  Cartright v. Derwinski, 2 Vet. App. 24 (1991).


Extraschedular Consideration

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

Here, the rating criteria for the Veteran's service-connected right and left knee disabilities, reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, which have not been shown.  The medical evidence does not show that the Veteran's service connected disabilities cause unusual factors such as frequent hospitalizations or marked interference with employment beyond that contemplated by the rating schedule.  The rating criteria are therefore adequate to evaluate the Veteran's right and left knee disabilities, and referral for consideration of extraschedular ratings is not warranted.


ORDER

Subject to the law and regulations governing payment of monetary benefits, an increased rating of 30 percent for residuals of internal derangement secondary to lateral instability of the left knee is granted. 

Subject to the law and regulations governing payment of monetary benefits, prior to January 25, 2013, a separate 10 percent rating for left knee arthritis is granted.

Subject to the law and regulations governing payment of monetary benefits, effective January 2013, a 20 percent rating for limitation of extension of the left knee is granted.

Subject to the law and regulations governing payment of monetary benefits, a separate 10 percent rating for limitation of flexion of the left knee, is granted.

An initial rating higher than 10 percent for a right knee disability, to include degenerative changes of the right knee, is denied. 

Subject to the law and regulations governing payment of monetary benefits, effective January 25, 2013, a separate 20 percent rating secondary to subluxation and instability of the right knee is granted. 

REMAND

As noted in the Introduction, the record raises a claim for entitlement to TDIU as the Veteran has asserted that he is unemployable due to his bilateral knee disorder.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Specifically, at the March 2013 personal hearing, the Veteran testified that he had stopped working 2 years earlier due to his knee disability.  He reported an occupational background doing construction work and had completed high school.  

As a result of this decision, the Veteran has a 30 percent disability rating for residuals of internal derangement secondary to lateral instability of the left knee, a 20 percent rating for limitation of extension of the left knee, a 10 percent rating for limitation of flexion of the left knee, a 10 percent rating for degenerative changes of the right knee, a 20 percent rating secondary to subluxation and instability of the right knee, and residual surgical scars of the right and left knee rated as noncompensably disabling.  These disability ratings combine to be 60 percent disabling.  See 38 C.F.R. §§ 4.25, 4.26 (2012).  In addition, his service-connected disability satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a) (2012).

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009).  Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor).

On VA examination in March 2010, the Veteran, who at the time was employed part time as a handyman, reported that he had decreased his activities and work hours due to left knee instability.  The examiner determined that the knee conditions had a significant effect of the Veteran occupationally due to decreased mobility, problems with lifting, lack of stamina, decreased strength and lower extremity pain.  Reportedly, the Veteran had turned down jobs due to his bilateral knee condition.  On VA examination in January 2013 the examiner determined that the condition rendered the Veteran unable to walk on uneven surfaces due to the anterior cruciate ligament and should avoid ladders, stairs, and walking greater than 10 to 15 minutes.  It is unclear from the evidence of record whether the service-connected right and left knee conditions render him unable to secure or follow a substantially gainful occupation.  VA has the duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disabilities has on a Veteran's ability to work.  See Friscia v. Brown, 7 Vet. App. 294 (1994) (holding in the case of a claim for TDIU, that VA has a duty to obtain medical opinions as to employability).

Finally, as the Veteran receives medical care through VA, treatment records dating from June 2012 VA Medical Center should be obtained.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record).  

Accordingly, the case is REMANDED for the following action:

1.  Issue a notice letter that complies with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. §3.159(b) (2012) that includes an explanation as to the information or evidence needed to establish entitlement to TDIU.

2.  Notify the Veteran that he may submit lay statements from himself and from individuals that have first-hand knowledge, and/or were contemporaneously informed of any occupational impairment caused by the service-connected knee disabilities in support of his claim for TDIU.  The Veteran should be provided a reasonable amount of time to submit this lay evidence. 

3.  Obtain, either electronically or physically, all treatment records for treatment received at the VAMC dated since June 2012.  All attempts to obtain these records must be documented in the claims file.

4.  Have the Veteran undergo an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, to ascertain whether it is at least as likely as not that the Veteran's service-connected disabilities alone render him unemployable.  The claims folder must be provided to and reviewed by the examiner.

The examiner must opine as to whether it is at least as likely as not that the Veteran's service-connected disabilities, without regard to his age or the impact of any nonservice-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation.  

If the Veteran's service-connected disabilities do not cumulatively render him unemployable, the examiner should suggest the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. 

5.  Thereafter, readjudicate the Veteran's claim.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




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


Department of Veterans Affairs