Citation Nr: 1320599 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 12-20 707A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a right knee disability. 2. Entitlement to an initial compensable rating for hemorrhoids. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active duty service from November 1971 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Board notes at the outset that the Board remanded issues to include entitlement to service connection for prostate cancer, diabetes mellitus, chronic bronchitis, entitlement to an evaluation in excess of 30 percent for residuals of a cold injury to the bilateral feet, and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) most recently in April 2011, which were the subject of a hearing in August 2008 with Veterans Law Judge Leboff. These issues are still being developed at the AMC and have not been recertified to the Board as of yet. Thus, the Board does not currently have jurisdiction over these issues. The Veteran claimed service connection for his right knee in December 2006. The claim was denied in the May 2007 rating decision. Eventually during the appeal, service connection for a right knee was granted in a March 2010 rating decision, and a 10 percent evaluation was assigned effective December 19, 2006. The Veteran submitted a timely notice of disagreement with that assigned evaluation in an April 2010 correspondence. An April 2011 Board remand indicated that a statement of the case (SOC) was to be issued concerning this issue, which would allow the Veteran to perfect his appeal. The SOC was issued in June 2012 and the Veteran submitted a timely Form 9 in August 2012. The Board additionally notes that the increased rating claim for the Veteran's right knee was not considered in the August 2008 hearing with VLJ Leboff as service connection had not been granted. Thus, a panel decision is not necessary in this instance. The Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge in North Little Rock, Arkansas, in March 2013; a transcript of that hearing is associated with the claims file. The issue of entitlement to an initial compensable rating for hemorrhoids 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 The preponderance of the evidence indicates that the Veteran's right knee disability is manifested by pain on motion and findings of degenerative joint disease; limitation of extension and flexion are slight and are noncompensable; and the disability is not productive of objective indications of locking, lateral instability, or recurrent subluxations. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5258, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at a March 2013 before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). 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). The standard range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2012). Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees or a 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees or a 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 (2012) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the 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. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the 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 (2012). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). The VA General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 17, 2004). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. During hearing testimony in March 2013, the Veteran indicated that his right knee was unstable and he has pain with motion. The Veteran claimed for entitlement to service connection for his right knee is December 2006. The Veteran was subsequently granted service connection by a March 2010 rating decision, providing a 10 percent disability rating since his date of claim. Turning to the evidence of record, the Veteran was afforded a VA examination in November 2007. The Veteran complained of pain, swelling and giving out with popping. He denied flare-ups and said that his pain was usually at seven out of ten. He used a neoprene brace. Range of motion was from 0 to 120 degrees with mild pain throughout the arc of motion; not worsened with repetitive motion. There was no effusion and his knee was stable with varus and valgus stress and anterior and posterior drawer testing. He had negative Lachman and McMurray testing. The assessment was moderate degenerative arthritis of the right knee. A June 2009 VA treatment note indicates that the Veteran received a cane for ambulation. X-rays of his knee were noted as normal. (Virtual VA Capri records) An October 2009 VA examination indicates that the Veteran's knee was normal or near normal. The Veteran was provided an additional VA examination in April 2011. The Veteran indicated that his pain was at an 8 out of 10 and that his knee went out on him. The Veteran's range of motion was 0 to 125; which was the same on repetitive motion. The Veteran reported pain. There was no McMurray sign and the Lachman test was negative. The knee was stable in both planes and there was minimal patellofemoral crepitation. The Veteran's x-rays showed minimal patellofemoral disease. An April 2012 VA treatment note indicates that the Veteran had instability of the right knee. (Virtual VA Capri records) The Board finds that the Veteran's current right knee disability warrants a 10 percent disability rating under Diagnostic Code 5003, based on the Veteran's diagnosed degenerative joint disease and the documented pain on motion. However, the disability does not warrant a rating higher than 10 percent. In this regard, the Board notes that the objective evidence shows that the Veteran has no compensable limitation of extension and that he has no compensable limitation of flexion. The medical evidence shows that there is no additional limitation of motion due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, the disability does not warrant more than a 10 percent rating under Diagnostic Code 5260 or a separate compensable rating under Diagnostic Code 5261. The aforementioned VA examinations disclosed no evidence of recurrent subluxation or lateral instability, and there is no other objective evidence of recurrent subluxation or lateral instability. The Board observes that an April 2012 VA treatment note indicates that the Veteran had instability of the right knee; however, this is a bare statement based on description by the Veteran with no apparent objective testing conducted. Therefore, a separate rating under Diagnostic Code 5257 is not warranted. In addition, none of the medical evidence shows that the Veteran has dislocated semilunar cartilage. Therefore, a higher rating under Diagnostic Code 5258 is not in order. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's right knee warranted more than a 10 percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected knee disability but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to an initial evaluation in excess of 10 percent for a right knee disability is denied. REMAND The Veteran's hemorrhoids have been evaluated as zero percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7336 (2012). Under Diagnostic Code 7336, the following evaluations are assignable for internal or external hemorrhoids: 20 percent for hemorrhoids with persistent bleeding with secondary anemia or fissures; 10 percent for hemorrhoids that are large or thrombotic, irreducible, and with excessive redundant tissue, evidencing frequent occurrences; and zero percent for hemorrhoids that are mild or moderate. Unfortunately, the July 2011 VA examination concerning the rectum and anus did not provide sufficient information to rate the Veteran's hemorrhoid disability consistent with the relevant diagnostic code. The Veteran must be afforded an additional examination on remand. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a new proctology examination to address the nature and extent of his hemorrhoids. The claims folder including a copy of this Remand must be made available to the examiner prior to the examination and must be reviewed by the examiner in connection with the examination. The examiner should specify on the examination report that the claims folder has been reviewed. Any reasonably necessary tests and studies to address the questions posed should be conducted. The Board advises the examiner that the examiner should consider the Veteran's statements of medical history and symptoms of disability to the extent these statements are credible, in the examiner's judgment, based on consideration of other evidence of record. The examiner should state his conclusions about the credibility of the Veteran's statements of disability, symptoms, and medical history. The examiner should provide an explanation for these conclusions. The examiner must determine if the Veteran has persistent bleeding with secondary anemia or fissures; hemorrhoids that are large or thrombotic, irreducible, and with excessive redundant tissue, evidencing frequent occurrences; or hemorrhoids that are mild or moderate. The examiner must provide an explanation for these conclusions supported by facts in evidence and medical knowledge. Any necessary tests or studies should be conducted to arrive at medically informed conclusions as to the nature and etiology of diseases or conditions affecting the Veteran's anus and rectum, and any resulting symptoms or disabilities, including anal leakage/fecal incontinence. The examiner must provide an explanation for these opinions supported by facts in evidence and medical knowledge. 2. Thereafter, the RO should readjudicate the veteran's claim of entitlement to a higher (compensable) initial rating for hemorrhoids de novo. If the Veteran does not assert that he is satisfied with the rating assigned, he and his representative should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The Veteran should be afforded the applicable time to respond. The Veteran 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). ______________________________________________ JAMES A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs