Citation Nr: 1317829 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 07-14 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee strain with tendonitis ("right knee disability"). 2. Entitlement to a rating in excess of 10 percent for residuals of right ankle sprain ("right ankle disability"). 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 2002 to September 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Detroit, Michigan Department of Veterans Affairs (VA) Regional Office (RO,) which in pertinent part granted service connection for his right ankle and right knee disabilities, rated 10 percent, each effective September 17, 2005. In June 2012, the case was remanded for additional development. The matter of entitlement to a TDIU rating is being REMANDED to the RO via the Appeals Management Center in Washington D.C. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. The Veteran's right knee disability is not shown to have been manifested by limitation less than 45 degrees, extension limited at more than 10 degrees, compensable limitations of both extension and flexion, subluxation, or lateral instability; it is not shown to cause any functional impairment. 2. At no time during the appeal period is the Veteran's right ankle disability shown to have been manifested by more than moderate limitation of ankle motion. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent is not warranted for the Veteran's right knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5003, 5019, 5256-5263 (2012). 2. A rating in excess of 10 percent is not warranted for the Veteran's right ankle disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Code 5271 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An April 2007 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating. An July 2008 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). December 2005 and May 2008 letters also provided him with general disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in December 2005, July 2011, and September 2012. The Board has found that cumulatively the examination reports contain findings and discussion of the disabilities to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claims. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. On VA examination in December 2005 it was noted the Veteran sprained his right ankle playing basketball in service and was profiled for four to five days. He reported aching pain continuously at about a 6 (on a scale of 10), but that the ankle did not incapacitate him and he did not self-treat it. On examination, there was no laxity, he could walk and stand for an hour, and sitting was not a problem. He did not use assistive devices to walk, and the ankle disability did not interfere with his ability to work. He reported that his ankle became painful in inclement weather. He reported that he could conduct activities of daily living during flare-ups; he just "works through it". He reported he injured his right knee at the same time he injured his ankle. He noted he had pain all over the knee and that he was told he had fluid in the knee. At times, the knee gave out; but he does not fall or stumble. It did not lock. The pain was described as sharp all throughout the knee rated an 8. He reported that once or twice a week, the pain would flare above an 8; however, there was no incapacitation during the flare-ups. He did not receive any treatment, but used an ACE bandage occasionally. He reported problems with squatting, stooping, and sharp lateral turns. The knee did not interfere with his ability to work. Range of motion studies showed right ankle, dorsiflexion was to 18 degrees, with pain on the lateral surface between 10 and 18 degrees. Plantar flexion was to 35 degrees, with pain between 25 and 35 degrees. There was no additional loss of range of motion with repetitive motion. There was no fatigability or lack of endurance. Right knee flexion was to 130 degrees, with pain reported during the last 10 degrees. There was full extension, without pain. There was no additional loss of flexion with repetitive motion. There was no fatigability, lack of endurance, or incoordination. Anterior and posterior drawer, varus-valgus, and McMurrary tests of the right knee were all negative. X-rays of both the right knee and right ankle were normal. VA treatment records reflect the Veteran received treatment, including physical therapy, for right knee and ankle pain. In February 2006, he was fitted for an elastic ankle support. A July 2008 MRI showed right knee medial meniscus signal changes without evidence of a discrete tear. On July 2011 VA examination, the Veteran reported his ankle blew out a couple of times, and that he twisted his right knee in Iraq from weight bearing and running for cover. He reported that the joints had gotten worse; his right knee gives out randomly, and the right ankle hurts constantly. He took medication, used braces, and limited his activities. On examination, the Veteran's gait was normal, and there was no evidence of abnormal weight bearing and no evidence of inflammatory arthritis or loss of bone. Regarding the right knee, the examiner noted the Veteran was guarded in his movements, there was no crepitation or mass behind the knee, and no instability. There was clicking or snapping and grinding. There were no additional abnormalities. Range of motion studies showed flexion to 135 degrees without pain; and extension normal without pain. There was no addition limitation of motion with repetitive motion, and there was no objective evidence of pain following repetitive motion. Regarding the right ankle, there was no instability, tendon abnormality or angulation. Range of motion studies showed dorsiflexion to 20 degrees without pain; and plantar flexion to 45 degrees without pain. There was no additional limitation of motion with repetitive motion, and no objective evidence of pain following repetitive motion. X-rays of the right knee and right ankle were interpreted as unremarkable. The examiner found that the Veteran's right knee and right ankle were within normal limits, and noted that they impacted on his occupational activities because they caused decreased mobility, lack of stamina, weakness, fatigue, pain, and decreased strength of the lower extremity. Problems bending, stooping, and kneeling were also identified. The examiner noted there would be severe effects on the Veteran's daily activities, to include chores, shopping, exercise, recreation, traveling, driving, and that the disability would completely prevent him from playing sports. In January 2012, the Veteran was seen for continuous right knee pain at a level 9. He reported difficulty walking, and that he occasionally used a cane for assistance. He reported the pain was sharp, constant, and that he was unable to straighten out the knee. Treatment included medication. X-rays showed no bone, joint or soft tissue abnormality. On September 2012 VA examination, the Veteran reported the ankle had become more painful, and made it difficult for him to climb and descend stairs; the pain was described as 8 on a regular basis, increasing to 10 with walking, standing, and bending. Flare ups with walking and carrying things were reported. Right ankle range of motion studies showed plantar flexion to 40 degrees, with objective evidence of painful motion beginning at 40 degrees. Dorsiflexion was normal (to 20 degrees), without pain. Repetitive motion testing was conducted without changes in measurements. There was no additional limitation in range of motion of the ankle following repetitive testing. The examiner found no further functional loss or impairment of the ankle. There was no pain on palpitation, and strength testing was normal. The anterior drawer and talar tilt tests were negative. There was no evidence of ankylosis of the right ankle. The examiner noted the Veteran used a cane to assist with locomotion on a regular basis. The examiner noted his ankle condition impacted on the Veteran's work, because he was unable to stand or to walk for more than a block. Regarding the Veteran's right knee, he reported the knee had become more painful and he had difficulty walking up and down stairs. He was treated by a physician and had x-rays taken in the previous year. He described the pain as 8 on a regular basis, increasing to 10 with walking, standing, and bending. Flare ups occurred with walking and standing. Right knee range of motion studies revealed flexion to 130 degrees with objective evidence of painful motion beginning at 125 degrees. Extension was full, without evidence of painful motion. Repetitive motion testing did not change the measurements. The examiner found the Veteran did not have any functional loss or impairment of the right knee. There was normal strength, and there was no evidence of subluxation or dislocation of the right knee. There was no evidence of instability, as Lachman, posterior drawer, and valgus-varus tests were all normal. No additional abnormality or disability was identified. The examiner noted the Veteran used a cane to assist with locomotion on a regular basis. The examiner noted the Veteran's right knee condition impacted on his work, because he was unable to stand or walk for more than a block. Legal Criteria and Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earnings capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40. Right Knee The RO has rated the Veteran's right knee disability under Code 5024 (for tenosynovitis). Tenosynovitis is rated as degenerative arthritis. 38 C.F.R. § 4.71. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When the limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application for each such major joint affected. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71a, Plate II. Extension of a leg limited at 5 degrees or less warrants a 0 percent rating; extension limited at 10 degrees warrants a 10 percent rating; extension limited at 15 degrees warrants a 20 percent rating; extension limited at 20 degrees warrants a 30 percent rating; extension limited at 30 degrees warrants a 40 percent rating; and extension limited at 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. In addition, the rating schedule provides for a 10 percent rating for knee disability manifested by slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. The objective evidence outlined above does not support the Veteran's claim for an increase in the rating assigned for his right knee disability. Notably, arthritis has not been shown. As the knee is already rated at 10 percent, the analysis focuses on the criteria that would allow fort an increase to 20 percent; 10 percent is the maximum rating for a single joint under Code 5003. Flexion has never been shown to be limited to 30 degrees or extension limited at 15 degrees, so as to warrant a 20 percent rating under Codes 5260 or 5261. As compensable limitations of both flexion and extension are not shown, a 20 percent rating based on a combination of ratings under those Codes likewise is not warranted. While the Veteran's representative argues that the Veteran's use of a cane reflects right knee instability, no test for instability or subluxation during the evaluation period has been positive, and the record does not shown that any physician has prescribed use of a cane for knee instability. Consequently, a separate compensable rating under Code 5257 (for subluxation or instability) is not warranted. Application of other diagnostic Codes for rating knee disability (5256, 5258, 5259, 5262, 5263) would be inappropriate as the Veteran's right knee disability does not include the pathology required in the criteria for those Codes (ankylosis, recurrent, dislocated or post-removal semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. An increased rating for the Veteran's right knee disability is not warranted under any applicable criteria. The Board has considered whether referral for extraschedular consideration is indicated. There is no objective evidence, or allegation, that the schedular criteria are inadequate to rate either the Veteran's right knee disability or that the disability picture presented is exceptional. The symptoms and associated restrictions of function shown (limits on prolonged standing or walking) are fully encompassed by the schedular criteria. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Right Ankle The RO has rated the Veteran's right ankle disability under Code 5271 (for limitation of ankle motion). Code 5271 provides for a 10 percent rating for moderate limitation of ankle motion and a (maximum) 20 percent rating for marked limitation of ankle motion. 38 C.F.R. § 4.71a. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71a, Plate II. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The words, "moderate," and "marked," as used here are not defined in the 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. The use of descriptive terminology by medical examiners, although an element of evidence 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. The disability picture presented by the Veteran's right ankle disability is not shown to have ever exceeded one of moderate limitation. At no time during the appeal period has the Veteran's right ankle disability shown to be manifested by limitation of dorsiflexion to less than 18 degrees (about 90 percent of normal), or plantar flexion limited to less than 35 degrees (better than 75 percent of normal). On the most recent September 2012 examination, there was no evidence of pain on palpitation, all tests for instability were negative, and there was no decrease in strength; associated functional impairment was not found (although the examiner observed that occupational impairment would arise from limits on prolonged standing or walking). Accordingly, the preponderance of the evidence is against a schedular rating in excessive of 10 percent. The Board has also considered other codes pertaining to the ankle. Ankylosis of the ankle has not been diagnosed. Thus, a rating under Code 5270 is not warranted. There is also no evidence of malunion or astragalectomy so as to warrant rating under Codes 5272, 5273, and 5274, respectively. See 38 C.F.R. § 4.71a. The Board has considered whether referral of this issue for extraschedular consideration is indicated. There is no objective evidence, or even allegation, suggesting that the schedular criteria are inadequate to rate either the Veteran's right ankle disability or that the disability picture presented is exceptional. The symptoms and associated restrictions of function (limits on prolonged standing, walking, sports) shown are fully encompassed by the schedular criteria. Consequently, referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). The matter of entitlement to a TDIU rating is addressed in the remand below. ORDER A rating in excess of 10 percent for a right knee disability is denied. A rating in excess of 10 percent for a right ankle disability is denied. REMAND In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a TDIU rating, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU rating is warranted as a result of that disability. Id. 453-54. An unappealed March 2009 rating decision (during the pendency of this appeal) denied the Veteran's claim for a TDIU rating. However, his representative has since specifically re-raised such claim in the context of the Veteran's increased rating claims. See the April 2013 Informal Hearing Presentation. Under the Rice precedent, such claim must now be readjudicated. The Veteran asserts that his right knee and right ankle disabilities prevent him from working, because he is unable to walk or stand for prolonged periods of time, and his ability to bend and carry is limited. As the RO has not addressed the claim anew (since it was re-raised by the Veteran's representative following the March 2009 rating decision becoming final), it must be returned to the RO for their initial determination. Accordingly, the case is REMANDED for the following: 1. The RO should provide the Veteran a TDIU application form for completion, and send him a VCAA notice letter notifying him and his representative of what is necessary to substantiate a claim for TDIU. The notice must also explain what information or evidence the Veteran must provide, and what information or evidence VA will attempt to obtain on his behalf (and advise the Veteran how an effective date would be assigned). The Veteran and his representative should have the opportunity to respond. 2. The RO should then fully develop and adjudicate the matter of the Veteran's entitlement to a TDIU rating based on his right knee and right ankle disabilities (independent of the impact of his PTSD, which is separately rated totally disabling). He should be notified of the determination. If it is not favorable, and if he timely files a notice of disagreement, the RO should issue an appropriate SOC in the matter and afford him and his representative the opportunity to respond. If this timely occurs, this matter should be returned to the Board, for further appellate review. The purpose of this remand is to ensure compliance with the instructions of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). 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 matter must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs