Citation Nr: 1323955 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 07-17 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an extraschedular rating for residuals of a left total knee replacement for the period since December 1, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from May 1976 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 RO rating decision. In March 2009, September 2011 October 2012, and April 2013, the Board remanded the left knee issue for further development. As the Board has remanded the Veteran's claim, the Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). In December 2007, the Veteran and his representative appeared at a hearing at the RO conducted by a former Veterans Law Judge. In August 2010, the Board informed the Veteran that the Veterans Law Judge who conducted the hearing was no longer employed by the Board and indicated that he was entitled to another hearing. In a signed September 2010 statement, the Veteran responded that he did not wish to appear at another Board hearing. Accordingly, the Board will proceed with the consideration of his case. In December 2012, the Veteran's representative requested that the Veteran's request for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) "due to service-connected conditions," i.e., not just his left knee disability, which reportedly had been denied, should be "reconsidered." The Board finds that since that time his combined rating was increased and the Veteran has a combined 100 percent schedular rating throughout the appeal period, i.e., since December 1, 2010, this issue is moot and that no further action is necessary. 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). FINDING OF FACT All symptoms and level of disability resulting from the Veteran's service-connected left total knee replacement are contemplated by his assigned schedular rating. CONCLUSION OF LAW The criteria for referral for extraschedular consideration under 38 C.F.R. 3.321(b)(1) for the Veteran's service-connected left total knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, VCAA notice requirements have been satisfied by virtue of letters sent to the Veteran in May 2006, October 2006, March 2009, and August 2009. Collectively, these letters informed him of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The Veteran has also been advised as to how disability ratings and effective dates are assigned. After the issuance of VCAA notice, the claim was readjudicated by way of supplemental statements of the case (SSOCs), most recently in May 2013. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his left knee claim. 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 VLJ 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 VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the left knee claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran 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 claims folder contains VA medical evidence, private medical evidence, various lay statements, and a hearing transcript. The Veteran has undergone VA examinations in conjunction with this appeal. Significantly, the Board observes that the Veteran has not reported that left knee disability has worsened since the most recent VA examination in April 2012. As such, a remand is not required solely due to the passage of time since the April 2012 VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In considering whether to submit the Veteran's claim for an extraschedular rating to the Director, Compensation and Pension Service (Director), for extraschedular consideration, there was compliance with the April 2013 remand directive inasmuch as there is now sufficient information and evidence to adjudicate the issue. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Court or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). The RO also issued an SSOC in May 2013. Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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 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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303 -04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("(A) medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The issue of whether the Veteran is entitled to a higher rating under the applicable schedular criteria is not currently before the Board, having been finally decided in an April 2013 Board decision. However, in the April 2013 decision, the Board remanded an additional issue as to whether the Veteran may be entitled to additional compensation on an extraschedular basis under 38 C.F.R. § 3.321(b) for consideration by the RO. It is generally provided that the rating schedule will represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from a service-connected disability. 38 C.F.R. § 3.321(a). In the exceptional case, however, to accord justice, where the schedular evaluations are found to be inadequate, the Secretary is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321(b)(1), an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities. 38 C.F.R. § 3.321(b). To determine whether referral to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321, VA must find that the applicable rating criteria do not reasonably describe the particular Veteran's disability level and symptomatology. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Then VA must determine whether the Veteran's exceptional disability picture manifests in other related factors, such as marked interference with employment and frequent periods of hospitalization, rendering the diagnostic criteria inadequate. Id.; see also 38 C.F.R. § 3.321(b)(1). When the evidence of record establishes these two elements, VA is required to refer the matter for extraschedular consideration. Id. Finally, as part of the extraschedular consideration by the Chief Benefits Director and any subsequent adjudication in connection with the claim, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Id. The caselaw is clear that the Board has no legal authority to assign an extra-schedular rating under 38 C.F.R. § 3.321(b) without first referring the claim to the Director, Compensation and Pension Service for initial review. Floyd v. Brown, 9 Vet. App. 88 (1996). In this case, following the Board's remand, the RO considered whether referral for extraschedular consideration was warranted and determined that it was not. See May 2013 Supplemental Statement of the Case. On October 13, 2009, the Veteran underwent left total knee replacement surgery, and was assigned a temporary 100 percent evaluation since the date of that surgery. As noted above, the Veteran is assigned a 60 percent evaluation effective December 1, 2010 under Diagnostic Code 5055. Under Diagnostic Code 5055 for total knee replacement, a 100 percent evaluation is assigned for one year following the implantation of the prosthesis. A 60 percent evaluation is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity. For a prosthetic replacement of the knee joint with intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula). In January 2011, the Veteran stated that he was employed as a parole/probation officer, and that his employment may be terminated because he is required to run, walk, and sit for prolonged periods of time, kneel, bend, climb stairs, and lift approximately 25 pounds on a routine basis. He stated that he had to be recertified in defense tactics. The Veteran underwent a VA examination in February 2011. He stated that he could not recertify in defense tactics at his job over the previous three years because he did not feel that he could adequately defend himself in his current physical condition. He reported that there was pain, stiffness, and decreased speed of left knee motion. He stated that symptoms of inflammation included swelling. Flexion was 5 to 75 degrees. Extension was limited by 5 degrees. The examiner noted that the Veteran's status post left total knee replacement, along with other disabilities, had significant effects on occupation due to decreased mobility, problems with lifting and carrying, and pain. These problems had no impact on feeding, toileting and grooming; mild effects on bathing and dressing; moderate effects on driving; severe effects on chores, shopping and traveling; and prevented exercise and sports. The examiner noted that it would be very difficult for the Veteran to return to his employment position and adequately defend himself. The examiner stated that the Veteran was best suited for a sedentary occupation. A letter from Dr. Evans dated in March 2011 reflects that Dr. Evans advised the Veteran that he cannot participate in his annual Defensive Tactic Training because participation could cause further damage to his knees. Private treatment records from Dr. Evans dated in March 2012 reflect that the Veteran had about 80 degrees of flexion. There was no instability. The Veteran had another VA examination in April 2012. He reported that the left knee hurt while walking long distances, and he complained that the knee did not have very good range of motion. Flexion was to 80 degrees, with painful motion beginning at 80 degrees. There was no limitation of extension and no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test flexion was to 80 degrees and there was no post-test limitation of extension. The Veteran did not have any additional limitation in range of motion of the knee following repetitive-use testing. He had no functional loss and/or functional impairment of the knee. He had no tenderness or pain to palpation for joint line or soft tissue of the knee. He had normal strength on flexion and extension. Anterior, posterior, and medial-lateral stability were normal. There was no evidence or history of recurrent patellar subluxation/dislocation. He had no "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. He had no meniscal conditions or surgical procedures for a meniscal condition. The Veteran had chronic residuals of left knee surgery consisting of severe painful motion or weakness. The Veteran's left knee disability impacted his ability to work because he stated that his back, knee, and hip pain prevented him from standing and walking long distances. The examiner noted that, as the Veteran has had bilateral knee replacements, it would be difficult for him to sustain employment where he was very active, although he should have no trouble maintaining a job sitting at a desk. A letter from Florida Department of Corrections dated in February 2013 reflects that the Veteran retired as a Certified Correctional Probation Officer in December 2012. Overall, the Board is of the opinion that all symptoms and level of disability resulting from the Veteran's service-connected total left knee replacement are adequately addressed and compensated by his assigned schedular rating. The Veteran's ratings for his total left knee replacement has fully considered his complaints such as pain, weakness, stiffness, decreased speed of motion, and limitation of motion. As such, the Board concludes that the Veteran's schedular rating is adequate. Thus, pursuant to Thun, the Board agrees with the Appeals Management Center (AMC)'s finding in May 2013 that referral to the Chief Benefits Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321 is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision than set forth herein. ORDER The appeal is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs