Citation Nr: 1319646 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-11 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to an initial increased evaluation for residuals of left knee injury, evaluated as non-compensable prior to February 17, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 2003 to July 2007. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. During the pendency of the appeal in a March 2010 rating decision, the RO increased the disability evaluation for service-connected residuals of a left knee injury to 10 percent disabling effective February 17, 2010. In a decision of August 2012, the Board denied the claim for an increased disability rating for the service connected left knee injury and remanded the claim for service connection for bilateral hearing loss. The Veteran appealed the denial of an increased disability rating for a left knee injury to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand of December 2012, the Court, in December 2012, remanded the portion of the Board's decision that denied entitlement to a compensable disability rating for residuals of a left knee injury prior to February 17, 2010. The Board has reviewed the Veteran's Virtual VA file and finds there are no additional relevant records pertaining to the present claim contained therein. In a May 2012 statement, the Veteran's representative raised the issue of whether there was clear and unmistakable evidence in the RO's February 2008 rating decision denying service connection for an acquired psychiatric disorder, which has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board previously referred the issue in the decision and remand of August 2012. No action has been taken by the AOJ regarding this issue. Therefore, the Board will again REFER the issue to the AOJ for appropriate action. The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to February 17, 2010, the Veteran's service-connected residuals of left knee injury were manifested by painful motion, but with no additional functional impairment or varying and distinct levels of severity with repetitive use; no more than moderate knee impairment is shown during this period. CONCLUSION OF LAW Prior to February 17, 2010, the criteria for a rating of 10 percent for service-connected residuals of left knee injury were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.44, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261, 5262 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In correspondence dated in September 2007, prior to the February 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The September 2007 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Since this claim is the appeal of an initial rating, fully satisfactory notice was delivered after it was adjudicated. However, the RO subsequently readjudicated the claim based on all the evidence in various supplemental statements of the case, most recently in March 2010. The Veteran was able to participate effectively in the processing of his claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete notice been provided at an earlier time. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with VA examinations throughout the appeal period. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined the opportunity to present testimony before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Analysis As noted above, the issue for consideration is the evaluation of the residuals of a left knee injury prior to February 17, 2010. The issue was remanded by the Court in December 2012 for readjudication. The Veteran contends that his service-connected left knee disability warrants a compensable evaluation prior to February 17, 2010. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7. While the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that prior to February 17, 2010, the disability pictured remained the same and a staged rating is not warranted. The Veteran's left knee disability has been evaluated under Diagnostic Code 5260. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, limitation of flexion of the knee to 60 degrees warrants a zero percent evaluation, limitation of flexion of the knee to 45 degrees warrants a 10 percent evaluation, limitation of flexion of the knee to 30 degrees warrants a 20 percent evaluation, and limitation of flexion of the knee to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Related to Diagnostic Code 5260 is Diagnostic Code 5261, which provides that limitation of extension of the knee to 5 degrees warrants a zero percent evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension of the knee to 15 degrees warrants a 20 percent evaluation, limitation of extension of the knee to 20 degrees warrants a 30 percent evaluation, limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation, and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9- 2004. Normal knee motion is from zero degrees to 140 degrees. 38 C.F.R. § 4.71, Plate II. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the following evaluations are assignable for other impairment of the knee, to include recurrent subluxation or lateral instability: 30 percent for severe, 20 percent for moderate, and 10 percent for slight. The Board observes in passing that "slight" is defined as "small in size, degree, or amount; of small importance." See Webster's New World Dictionary, Second College Edition (1999), 1038. "Moderate" is defined as "of average or medium quantity, quality, or extent." Id. at 704. "Severe" is generally defined as "extremely intense." Id. at 1012. With respect to potential application of other criteria, the evidence does not support an award for an increased rating for the left knee under Diagnostic Code 5256 for ankylosis of the knee; Diagnostic Code 5258 for dislocated, semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; Diagnostic Code 5259 for symptomatic removal of semilunar cartilage; Diagnostic Code 5262 for impairment of tibia and fibula; or Diagnostic Code 5263 for genu recurvatum as none of these disabilities have been demonstrated at any time during the course of the appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. The Board finds that for the period prior to February 17, 2010, a 10 percent evaluation is warranted due to painful motion. There is both credible lay and medical evidence of pain on motion. Indeed, at the August 2008 VA examination, the Veteran reported daily mechanical pain in the left posterior lateral femoral condyle area and rated it as 3/10 in intensity. He also had flare-ups of pain rated as 5-6/10 in intensity upon awakening and lasting for an hour or so. He indicated that he experienced rare episodes (two to three times a week lasting a day or so) of left knee effusion associated with prolonged strenuous activity, e. g. kneeling, crouching, squatting, crawling, or prolonged walking or standing. Additionally, examination revealed painful motion on extreme flexion. Moreover, VA outpatient treatment records of July 2007, April 2008, August 2008 and July 2009 all document complaints of and treatment for left knee pain and painful motion. "The intent of the [rating] schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. This applies even in the absence of arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In view of the Veteran's demonstrated painful motion in the left knee a 10 percent is warranted for residuals of a left knee injury. A higher rating is not warranted based on arthritis or limitation of motion, however. The current evaluation now contemplates pain on motion or limitation of flexion to 45 degrees. In order to warrant a higher evaluation, there would have to be the functional equivalent of limitation of flexion to 30 degrees. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Prior to February 17, 2010, no limitation of motion of motion has been demonstrated. On VA examination in August 2008, the Veteran's left knee range of motion was from 0 to 140 degrees. An August 2008 VA treatment record reflected that there was good range of motion in the knee. A July 2009 VA treatment record showed that range of motion was normal. Thus, flexion has not been limited to anywhere near 30 degrees, such that an evaluation in excess of 10 percent would be assigned under Diagnostic Code 5260. Moreover, although the Veteran had increased pain with repetitive movements, this did not result in functional loss equivalent to flexion limited to 30 degrees. In addition, given that extension has not been limited to 15 degrees or more, a compensable evaluation under Diagnostic Code 5261 is also not warranted. The Board notes that under VAOPGCPREC 9-04, separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. However, as noted above, there is no compensable loss of flexion or extension of the left knee. The Board has also considered whether higher disability evaluations would be warranted under other applicable diagnostic codes, namely 38 C.F.R. § 4.71a, Diagnostic Code 5257 for other impairment of the knee, to include recurrent subluxation or lateral instability, outlined above. In order to warrant a disability rating in excess of 10 percent under Diagnostic Code 5257 there must be a showing of moderate knee impairment to include recurrent subluxation or lateral instability. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5257. A July 2007 VA treatment record noted while there was occasional left knee pain, there was no joint swelling, redness, dislocation/fractures, or history of arthritis. An April 2008 VA treatment record showed that the Veteran complained of left knee pain and stiffness. During the August 2008 VA examination, the Veteran reported daily mechanical pain in the left posterior lateral femoral condyle area and rated it as 3/10 in intensity. He also had flare-ups of pain rated as 5-6/10 in intensity upon awakening and lasting for an hour or so. Additionally, the Veteran reported some left knee stiffness in the morning. He indicated that he experienced rare episodes (two to three times a week lasting a day or so) of left knee effusion associated with prolonged strenuous activity, e. g. kneeling, crouching, squatting, crawling, or prolonged walking or standing. He also described rare instances of left knee instability. He denied using any assistive devices. On evaluation, the examiner noted that there was no effusion or ligamentous laxity, and McMurray's sign was negative. The August 2008 VA treatment record showed that while there was some tenderness over the patellar region, there were no inflamed joints, crepitus, swelling, or erythema. At his June 2009 hearing before a Decision Review Officer, the Veteran testified that his left knee swelled, locked up, cracked, and popped. At the July 2009 VA clinical visit, the Veteran complained of left knee pain and swelling. On evaluation, the Veteran was noted to have no joint swelling but had crepitus (tenderness was noted as well but that was in relation to the knee scar, which is separately evaluated). Based on the evidence, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 5257. While the Veteran has reported occasional instability of the knee, swelling and locking, and effusion, there has been no objective finding of instability of the left knee prior to February 17, 2010. Moreover, none of these symptoms, or other symptoms commensurate with moderate knee impairment, were demonstrated on evaluation. Based on the evidence noted above, the Veteran's disability does not approximate moderate knee impairment to warrant a higher evaluation under Diagnostic Code 5257. The Board notes that separate ratings may be assigned for knee disabilities under Diagnostic Codes 5257 and 5003 where there is recurrent subluxation or lateral instability in addition to X-ray evidence of arthritis. See generally VAOPGCPREC 23-97 and VAOPGCREC 9- 98. However, there is no evidence that the Veteran has left knee arthritis to warrant a separate rating. All of the x-rays have noted a normal left knee. As previously noted, based upon the guidance of the Court in Fenderson v. West, 12 Vet. App. 119 (1999), the Board has considered whether a staged rating is appropriate. However, in the present case, the Veteran's symptoms remained constant throughout the course of the period on appeal and as such staged ratings are not warranted prior to February 17, 2010. Other Considerations The Board places great probative value on the medical records showing a lack of instability or subluxation. In this regard, the Board acknowledges that the Veteran is competent to report observable symptomatology, such as his knee pain, swelling, locking, etc. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, while competent to report his symptoms, the Board has placed greater value on the examination reports that fail to show instability or subluxation of the knee. In this regard, the Veteran's statements do not constitute competent medical evidence of instability or subluxation that could refute the findings reached by the examiners and clinicians of record. The Veteran's statements are offered by a lay person with no medical training who is not qualified to render an opinion concerning the presence of instability or subluxation. In this case, the Board gives more weight to the findings on objective testing by medical professional than the Veteran's lay statements. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the Veteran has not required any hospitalizations for his disability and that the manifestations of his disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disabilities would be in excess of those contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service- connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued and the record does not otherwise reflect, that his left knee disability rendered him totally unemployable during the period prior to February 17, 2010. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to an evaluation of 10 percent for residuals of a left knee injury prior to February 17, 2010, is granted, subject to the criteria governing the payment of monetary benefits. REMAND In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims ("the Court") held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In an August 2012 remand the Board requested that a VA audiological examination and opinion be obtained. Thereafter, the claim for service connection for bilateral hearing loss disability was to be readjudicated. In October 2012, the Veteran was afforded a VA audiological examination. However, a review of the claim file, both paper and Virtual VA, reveals that the Agency of Original Jurisdiction (AOJ) is yet to readjudicate the claim for service connection for bilateral hearing loss. Therefore, the claim must be remanded once again. Accordingly, the case is REMANDED for the following action: The AOJ must readjudicate the issue of entitlement to service connection for bilateral hearing loss with consideration of all newly obtained evidence to include the VA audiological examination of October 2012. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs