Citation Nr: 1324034 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-24 436A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for the service-connected left knee disability, status post-operative medial meniscectomy with anterior cruciate ligament (ACL) reconstruction, on the basis of instability. 2. Entitlement to a separate disability evaluation in excess of 20 percent for the service-connected left knee osteoarthritis with painful motion. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from June 1982 to September 1982 with subsequent service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs Regional Office (RO) in Portland, Oregon. These claims were previously remanded by the Board in August 2009 and January 2012 for further evidentiary development. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Entitlement to TDIU was denied in a rating decision of December 2005. However, since then, evidence that the Veteran's service connected left knee disability affects his employability. Therefore, the issue of entitlement to TDIU has once again been raised during the course of the appeal. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending claims, and is listing the raised TDIU claim as an issue on appeal. The Board has reviewed the Veteran's extensive additional records contained in the Veteran's Virtual VA file and has considered the records in the decision issued below. The issue of entitlement to TDIU 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. FINDINGS OF FACT 1. Status post-operative medial meniscectomy with anterior cruciate ligament (ACL) reconstruction, on the basis of instability has been manifested by no more than moderate symptoms. 2. Osteoarthritis of the left knee is manifested by painful motion with flexion at worst of 90 degrees on repetitive use and full extension; ankylosis and factors that produced additional functional loss was not shown CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for left knee, status post-operative medial meniscectomy with anterior cruciate ligament (ACL) reconstruction, on the basis of instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a disability rating in excess of 20 percent left knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1) ,3.102, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letter dated in March 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The VCAA letter informed the Veteran of what information or evidence was needed to support his claim what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The letter predated the rating decision. Notice as to how VA assigns disability ratings and effective dates was provided in a letter of September 2008 after the initial rating decision. As the claim is being denied, the timing deficiency with regards to this notice is harmless. Nonetheless, the claim was readjudicated in a supplemental statement of the case of October 2008. Therefore, any deficiencies with the timing requirements are harmless. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c) (2012). All of the Veteran's service treatment records, and VA and private treatment records have been associated with the claims file, and the Veteran has not identified any outstanding post-service treatment records for VA to obtain. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded with various VA examinations. The VA examination reports described the disabilities in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Therefore, the Board concludes that there was substantial compliance with the directives contained in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria and Analysis The Veteran seeks an increased disability evaluation for his service connected left knee. The Veteran is currently in receipt of two separate 20 percent evaluations for his left knee: (1) based on instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257, and (2) based on limitation of motion due to arthritis under 38 C.F.R. § 4.71a, Diagnostic Codes 5210 and 5260. 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 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. 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 (2012). Traumatic arthritis will be 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 codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. 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, Diagnostic Code 5003. The standard ranges of motion of the knee are zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is rated under Diagnostic Codes 5260 and 5261: Leg flexion limited to 60 degrees warrants a noncompensable evaluation; flexion limited to 45 degrees warrants a 10 percent evaluation; flexion limited to 30 degrees warrants a 20 percent evaluation; and, flexion limited to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Leg extension limited to 5 degrees warrants a noncompensable evaluation; extension limited to 10 degrees warrants a 10 percent evaluation; extension limited to 15 degrees warrants a 20 percent evaluation; extension limited to 20 degrees warrants a 30 percent evaluation; and, extension limited to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Moreover, Diagnostic Code 5257 provides a 10 percent evaluation for lateral instability or recurrent subluxation of a knee that is slight, a 20 percent rating when those symptoms are moderate, and a 30 percent rating when severe. The terms "mild," "moderate," and "severe" are not defined in the Schedule. 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. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, 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. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca, 8 Vet. App. at 206. A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2012); see also Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Historically, service connection was initially established for a post-operative medial meniscectomy of the left knee in a March 2001 rating decision. A disability evaluation of 10 percent was assigned under Diagnostic Code 5257, effective from June 6, 2000. Subsequently, in a December 2002 rating decision, the Veteran was granted a separate disability evaluation of 10 percent for osteoarthritis of the left knee under Diagnostic Code 5010, effective from July 10, 2001. The RO continued the previously assigned 10 percent disability evaluation for the service-connected residuals of the Veteran's medial meniscectomy. In May 2004, the RO increased the Veteran's disability evaluations to 20 percent for both his left knee medial meniscectomy and his left knee osteoarthritis, effective from February 20, 2004. In January 2005, VA received another claim from the Veteran seeking an increased disability evaluation for his left knee disabilities. In a December 2005 rating decision, the RO continued the Veteran's 20 percent disability evaluation for the service-connected residuals of the left knee meniscectomy and proposed to decrease his 20 percent disability evaluation for the left knee osteoarthritis to 10 percent. His disability evaluation was subsequently reduced in a July 2006 rating decision, effective as of October 1, 2006. The Veteran's timely notice of disagreement was received at the RO in June 2007. In an October 2008 Decision Review Officer decision, the RO increased the disability to 20 percent, but only effective from June 26, 2008. The Veteran thereafter perfected an appeal to the Board that included the propriety of the reduction from 20 percent to 10 percent for the service-connected left knee osteoarthritis, which, ultimately was effective from October 1, 2006 through June 25, 2008. After that time, an increased rating to 20 percent was assigned; which, essentially equates to a restoration of the 20 percent rating as of June 26, 2008. In a January 2012 decision, the Board restored the 20 percent disability rating from October 1, 2006 to February 25, 2008. Therefore, at issue is whether the Veteran is entitled to a disability rating in excess of 20 percent for osteoarthritis of the left knee under Diagnostic Code 5260-5010; and in excess of 20 percent under Diagnostic Code 5257 for instability. At a March 2004 VA examination, the Veteran reported left knee pain on a good day of 4-5/10 and on a bad day of 9/10. He reported having 20 bad days a month. He reported immediate pain on walking and standing, no pain on sitting, and denied any swelling and locking. He complained of buckling and instability. Physical examination revealed range of motion of flexion to 110 degrees with significant stiffness, and pain and tenderness globally about the left knee. There was a positive Drawer sign and laxity of the medial collateral and lateral collateral ligaments of the left knee. He was diagnosed with moderate osteoarthritis of the left knee, and status post medial meniscectomy and anterior cruciate ligament reconstruction of the left knee with instability. The examiner opined that during flare-ups from repetitive use, there would be a motion loss of additional 15-20 degrees and there would be gait alteration, lack of ambulatory capacity and standing capacity. Instability and give way would also be expected. At a February 2005 VA examination the Veteran reported being able to walk long distances and stand up for four to five hours at a time. Some days this hurts his knees, and some days it does not. He stated he was given a brace but does not use it. A couple of times a month, his left knee swells. He denied any flare-ups and rather reported daily consistent pain which some days increases with repetitive movement. He uses no canes, crutches or assistive devices. Range of motion was flexion to 130 degrees actively and passively, with very little pain. There was increase in laxity in the anterior cruciate ligament to anterior drawer and Lachman's, but he has an end point. McMurray's test was negative. There was mild medial joint pain with no intraarticular effusion. There were no instabilities to varus and valgus stress testing at 0 to 30 degrees. The examiner noted that with repetitive use an additional loss of 15 to 20 degrees of motion was expected. At a June 2005 VA examination the veteran reported pain since his reconstructive surgery with episodes where it wants to give out on him. He denied any true instabilities where the knee has caused him to fall down but instead it causes him to have a catching sensation where he has to catch himself and stop himself from falling. He denied any locking, clicking, pop numbness or tingling. His left knee is painful 24 hours a day with repetitive activity but has a 5/5 strength. It seems to be stiff all the time. He denied any incapacitating episodes and stated he feels very steady on his feet. Objectively there was no swelling, deformity or discoloration other than a scar on the left knee consistent with an anterior cruciate ligament reconstruction. There was no tenderness to palpation about the peripatellar structures, popliteal space or lateral joint line, but there was tenderness to the medial joint line. Range of motion to 130 degrees actively and passively which was pain free. He had no instability for anterior cruciate ligament testing of anterior drawer or Lachman's. Varus and valgus stress testing at 0 and 30 degrees have firm endpoints with no instabilities and McMurray's test was negative. Strength was 5/5. VA outpatient treatment records of August 2006 note the Veteran reported his left knee gives out frequently. In a June 2007 notice of disagreement, the Veteran stated that the VA examiner was incorrect with his assessment of the left knee and that aside from constant pain, he does have instability of his knee and at least 3-4 episodes of loss of balance per week. If he is active, it is more like 8-9 times. At a June 2008 VA examination, the Veteran reported left knee pain on walking for more than five minutes, daily grinding and popping sensation, and the feeling of the knee like it is going to give out but without trauma or falls. He reported increased pain, heat and swelling with repetitive movement. He does not miss any time from work and he feels like he is stable on his feet. He denied any history of dislocations, subluxations or instabilities. Range of motion was to 125 degrees, with pain past 90 degrees. It was noted that it was within reason to assume that this Veteran would lose between 25 and 30 degrees of additional motion due to flare-ups and repetition. There was no instability to anterior drawer or Lachman's and he had a very firm endpoint. There was a slight increase in laxity compared bilaterally. There was no varus or valgus instabilities and he had a negative McMurray's test. Strength was 5/5. At a February 2012 VA examination, the Veteran reported constant pain on the left knee. He reported falling due to left knee imbalance. He denied that flare-ups impact the function of the lower legs. Range of motion was flexion to 130 degrees with pain; and extension was 0 degrees of hyperextension without pain. There was no change of range of motion with repetitive use; but there was additional functional loss of less movement, weakened movement, excess fatigability, pain, disturbance of locomotion and interference with sitting, standing and weight-bearing. Strength was 5/5. Lachman's test was 1+. There was no posterior or medial-lateral instability; and no history of evidence or history of recurrent patellar subluxation/dislocation. He has frequent episodes of joint pain associated with meniscal tear. He had a meniscectomy but without any residual symptoms. Scars were noted, but none were painful, unstable or with a total area of greater than 39 square centimeters. He does not use any assistive devices. The examiner noted that the knee condition affects his ability to work in that it limits lifting, pulling and pushing. With regards to the left knee instability under Diagnostic Code 5257. Upon consideration of the evidence above, the Board finds that the objective evidence shows that the left knee instability is no more than moderate and therefore a higher disability rating in excess of 20 percent is not warranted. In this regard, the Board notes that the majority of the objective evidence of record shows no instability. Indeed, anterior and posterior drawer signs were consistently negative. McMurray's was also consistently negative, and varus and valgus were consistently normal. Lachman's was consistently normal except for findings at the February 2012 examination which showed it to be 1+. In June 2008 there was slight laxity by comparison bilaterally but no real instability. Therefore, the evidence shows that the Veteran has no more than moderate instability of the left knee. Even when considering the Veteran's reports of giving way and at times falling due to his left knee instability, there is no showing of severe instability. Indeed, the Veteran has consistently denied using a knee brace despite it being prescribed and at no time has he been reported to use any kind of assistive device to walk or aid in his stability. Therefore, even when considering the Veteran's assertions, which the Board has no reason to doubt their credibility, the Board finds that the evidence simply does not rise to the level of severe instability and a disability rating in excess of 20 percent is not warranted. With regards to the separately rated arthritis with loss of motion, the Board finds that the evidence does not support a disability rating in excess of 20 percent. Indeed, in order to warrant a disability rating in excess of 20 percent, the evidence must show flexion limited to 15 degrees or extension limited to 20 degrees. Upon review of the evidence above, the Board finds that there is no lay or medical evidence that suggests that flexion is limited to less than 30 degrees. The Veteran's left knee disability has not, at any time, exhibited a functional loss equivalent to flexion limited to 15 degrees needed to warrant a 30 percent disability rating under Diagnostic Code 5260. At worst, flexion was estimated to be to 90 with repetitive use at the March 2004 VA examination. Here, the objective clinical findings consistently fail to show that his disability meets the criteria for an increased rating. The Board notes that the Veteran has reported that he has decreased activity and limitation of motion and the Board finds these statements to be credible. However, the current evaluation actually contemplates these symptoms. In addition, he has not indicated and the evidence does not show, that he has limitation of extension. Accordingly the Veteran is not entitled to a rating in excess of 20 percent based on limitation of motion under DCs 5260 or 5261. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, at any time during the claim, DCs 5256, 5262, and 5263 are not for application in this case. Moreover, the Board has considered whether the Veteran is entitled to a separate rating for his scars, but finds that the Veteran's scars do not meet the requirements for a compensable evaluation and as such do not warrant a separate rating. The Board notes that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2012). Thun v. Peake, 22 Vet. App. 111. In this case there has not been shown to have been any hospitalizations due to the Veteran's left knee disability. The Veteran does assert that his knee disability affects his abilities at his job. The Board, however, finds that the medical evidence fails to show anything unique or unusual about the Veteran's right knee disability that would render the schedular criteria inadequate. The Veteran's primary right knee symptoms include pain, mild instability, and slight limitation of motion, and these factors are specifically accounted for in the rating criteria. Consequently, a referral for extraschedular consideration is not indicated. ORDER A disability evaluation in excess of 20 percent for the service-connected left knee disability, status post-operative medial meniscectomy with anterior cruciate ligament (ACL) reconstruction, on the basis of instability, is denied. A disability rating in excess of 20 percent for the service-connected left knee osteoarthritis with painful motion, is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the Veteran's TDIU claim must be remanded for further evidentiary development. As alluded to above, the record reflects that the Veteran is unable to work due to his service-connected left knee disabilities. Indeed, at the most recent VA examination of February 2012, the examiner noted that the knee condition affects his ability to work in that it limits lifting, pulling and pushing. The Board finds that, based on the examination report, the issue of TDIU has been reasonably raised by the record despite it previously being denied in December 2005. As noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an initial rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to TDIU should be adjudicated by the RO in light of the Court's decision in Rice. Furthermore, on review of the record, the Board finds that additional development is required to ascertain whether the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the veteran's disability does not prevent performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). In light of the above, the Board finds that the Veteran requires a current VA examination to ascertain whether unemployability due to service-connected disabilities is demonstrated. Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran a VCAA compliant notice letter informing him of the criteria necessary to establish TDIU. The RO should also ask the Veteran to identify any additional, relevant private or VA treatment records that he wants VA to help him obtain. The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records, if in existence. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. 2. Thereafter, the Veteran should be scheduled for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folders should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service connected disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. 3. Following the completion of the foregoing, and undertaking any other development it deems necessary, the RO should review the record and adjudicate the Veteran's TDIU claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued an appropriate statement of the case, and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs