Citation Nr: 1324065 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-35 839 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee associated with residuals, fracture, second toe, left foot with hammer toe and scar on plantar aspect of left foot. 2. Entitlement to service connection for a claimed left hand and wrist disorder, including as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to June 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the RO. The Veteran was scheduled for a hearing before a Decision Review Officer (DRO) in August 2009; however, she failed to report for the hearing without explanation and did not request that the hearing be rescheduled. In January 2012, Veteran testified at a hearing held before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript is of record. The Board remanded the case for further development in August 2012. That development was completed with regard to the issue decided herein, and the case has since been returned to the Board for appellate review. In a November 2012 rating decision, the RO granted additional, separate 10 percent ratings for left knee instability and limitation of extension. In the accompanying notification letter, the RO informed the Veteran of the necessary steps to file a Notice of Disagreement with the decision; the Veteran has not filed such to date. Accordingly, the Board finds that the Veteran did not perfect an appeal as to these issues, and they are not currently before the Board. The Virtual VA electronic claims file reveals additional evidence of the Veteran's ongoing VA treatment for her knees. It is unclear from the record if the agency of original jurisdiction (AOJ) electronically reviewed the sum of this evidence in relation to this issue. A waiver from the Veteran for this specific evidence is not of record; however, the Veteran waived AOJ consideration of the most recent September 2012 VA examination for the left knee (which indicated review of VA treatment records) in June 2013. The December 2012 Supplemental Statement of the Case (SSOC) for the left hand and wrist claim also on appeal noted review of the sum of these records. Moreover, these additional records do not show a permanent increase in severity of symptoms so as to suggest a different outcome to the case. Hence, such evidence does not materially alter the outcome of the case and is not pertinent to the issue on appeal (i.e., does not have a bearing on the outcome of the appellate issue). As such, remand for review of these records by the AOJ in the first instance and for the issuance of another SSOC (to the extent this is indeed the case) is not necessary. 38 C.F.R. §§ 19.31, 19.37. 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). The issue of service connection for a claimed left hand and wrist disorder, including as secondary to the service-connected left knee disability is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the period of the appeal, the service-connected degenerative arthritis of the left knee associated with residuals, fracture, second toe, left foot with hammer toe and scar on plantar aspect of left foot has not been shown to be productive of actual or functional flexion limited to 30 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee associated with residuals, fracture, second toe, left foot with hammer toe and scar on plantar aspect of left foot has not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2012). Under VCAA, 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran was provided all required VCAA notice in a pre-rating November 2007 letter, to include with respect to the disability rating and effect date elements of her claim. VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran was also afforded an opportunity to present testimony at hearings before the DRO and the Board. She failed to appear for the DRO hearing without explanation. During the Board hearing, the VLJ clarified the issue on appeal and asked questions designed to elicit information relevant to the claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. The Veteran's written statements are also of record. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded appropriate VA examinations in connection with her claim. The Board finds that the examinations were adequate, in that the exams were conducted by medical professionals who solicited history from the Veteran, and performed thorough examinations. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board does observe that it is unclear whether the December 2007 VA examiner reviewed the claims file; however, the examiner did review the Veteran's medical history and complaints and performed a physical examination that addressed the rating criteria. Indeed, the Court has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the Board has reviewed the report of the most recent September 2012 VA examination and finds that this opinion provides adequate medical evidence to decide the claim and substantially complies with the requirements articulated in the remand request. See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles and Analysis Disability ratings are determined by application of the criteria in the VA Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012). Each disability must be viewed in relation to its history, and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where, as here, entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ("staged") ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, as explained below, a uniform rating is warranted. 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 assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's contends that she is entitled to a higher rating for her service-connected left knee disability, which is currently assigned a 10 percent rating from November 4, 2004 pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 for traumatic arthritis indicates that the disorder is rated as degenerative arthritis. In this case, that rating is based on the limitation of motion of the affected part, the left knee, measured by flexion. See Diagnostic Codes 5003, 5260. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. For VA compensation purposes, the normal range of motion of the knee is 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In addition, when evaluating musculoskeletal disabilities, consideration is given to additional functional loss experienced due to pain, weakness, excess fatigability, and incoordination, to include with repetitive use or during flare-ups, as these factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes based on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). Historically, the Veteran has complained of chronic problems with her left knee related to arthritis, which developed as secondary to the service-connected left foot disability. The VA treatment records beginning around November 2006 show the Veteran had received ongoing treatment for complaints to include pain, swelling, stiffness, popping, locking, tenderness and decreased range of motion on flexion. She used a brace on a regular basis. See, e.g. VA treatment records from December and July 2007; October 2009; July 2012; December 2007 secondary hand/wrist claim. A January 2007 VA treatment record shows that the Veteran fell earlier that month while working as a painter at a VA hospital. The Veteran was afforded a VA examination in December 2007 and complained of symptoms including intermittent daily pain, locking, and swelling, with flare-ups 3-4 times a month lasting about 30 minutes. She used a brace daily and cane several times a week. She reported that, since the fall at work, her symptoms had increased in severity. There was no history of hospitalization or surgery reported aside from the reported January 2007 work accident. On examination, the Veteran's range of motion testing revealed that forward flexion was performed to 90 degrees, with pain beginning at 80-90 degrees but no other additional functional loss after repetitive motion. The diagnosis remained arthritis of the left knee. The examiner noted that she was unable to separate symptoms and findings in the left knee related to the work injury and the service-connected left knee disability. The Veteran submitted two written statements in January 2008 from friends who noted the recent onset of increasing severity in the Veteran's left knee disability, to include noticeable pain and locking, as well as limitation in some of her activities such as leisure activities and household chores. In the September 2008 Notice of Disagreement, the Veteran expressed disagreement with regard to the VA examination not addressing her contention of weakness in her knee causing her to fall. Parenthetically, the Board notes that she also indicated that range of motion was not tested; however, as noted above, range of motion measurement was recorded in the examination report. The Veteran was afforded a VA examination in August 2009 and complained of symptoms including pain, stiffness, constant effusions, swelling, and tenderness, with no reported flare-ups. She reported having intermittent, but frequent brace use. There was no history of hospitalization or surgery reported aside from treatment following the January 2007 work accident, which was noted as treatment for the left hand. On examination, the Veteran's range of motion testing showed that of forward flexion to 98 degrees with pain on motion and after repetitive motion but no other additional functional loss after repetitive motion. There was effusion, tenderness, and guarding of movement, but no clicks, snaps, or grinding, and no meniscus or other knee abnormality or ankylosis. The examiner noted review of a January 2007 x-ray report following the Veteran's work injury showing a normal left knee with no evidence of fracture, dislocation, or joint effusion. The diagnosis remained arthritis of the left knee. An October 2009 VA x-ray report of the knees showed an impression of no significant abnormality at that time. The report indicated no fracture or dislocation, significant degenerative disease, or joint effusion, as well as a maintained patellofemoral joint. An April 2010 VA treatment record showed that the Veteran continued to experience symptoms of arthritis in her left knee. At that time, she reported that her knees were helped by lidocaine, capsaicin cream and ibuprofen. On examination, it was noted that there was crepitus but no effusion. Following review of a MRI report from that day, the assessment was degenerative changes in the meniscus with a probable associated small tear of the lateral meniscus. During the January 2012 hearing, the Veteran testified that her symptoms had increased in severity since her VA examination in December 2007, to include increased flare-ups of at least twice weekly (ranging on a scale of 7-8 [/10]), popping, and lessened movement (no kneeling, unable to go up steps facing forward), to include when raising the knee. She reported using a cane to ambulate beginning around 2009 or 2010. She added that flare-ups were brought on by things such as rain and weather fronts. She denied a history of knee surgery and ligament or cartilage damage. See Board Hrg. Tr. at 10-13, 16-17, 20-26. An April 2012 VA treatment record showed continuing complaints of symptoms such as locking and swelling; she reported experiencing severe foot pain following left foot surgery in August 2011 and using a cane to ambulate. On examination, the anterior patella was tender; there was mild effusion, and flexion was limited to 30-40 degrees. A May 2012 VA MRI report showed an impression, in part, of questionable small nondisplaced tears of the lateral meniscus and mild tricompartmental degenerative changes. A VA treatment record from later that month shows that the Veteran was informed of her MRI results showing possible damage to the knee cartilage. She indicated that she wanted to discuss other treatment options instead of surgery; she was not interested in surgery at that time. In accordance with the August 2012 remand instructions, the Veteran was afforded a VA examination in September 2012 and complained of symptoms including increased pain, more noticeable on weightbearing, frequent locking sensation, and marked difficult negotiating stairs. She reported continued use of the cane for ambulation and brace when she went outside the home. During flare-ups, she was restricted to necessary activities of daily living and was non-weight bearing on the extremity. There was no history of hospitalization or surgery reported. On examination, the range of motion testing revealed forward flexion to 70 degrees, with pain beginning at 60 degrees. The Veteran deferred repetitive range of motion testing, stating the knees were too painful at that time. Additional functional impairment was noted as painful movement, less than normal, and weakened. Muscle strength testing was 4/5. There was no impairment of the tibia/fibula or genu recurvatum. The diagnoses were left knee arthritis and lateral meniscus tear. In regard to the meniscus tear, the examiner noted symptoms of frequent episodes of joint "locking," pain, and effusion for which there was no history of surgery. The examiner also listed as a pertinent finding that the Veteran was noted to flex the right knee to at least 90 degrees while seated and with initial standing from seated in the chair. The examiner noted and reviewed the findings of the May 2012 MRI and a prior x-ray report showing no significant abnormality. In November 2012, the Veteran was granted separate ratings of 10 percent for left knee instability and limitation of flexion. In considering the evidence of record in light of the law and regulations, the Board finds that a rating in excess of 10 percent for the service-connected left knee disability based on limitation of flexion is not assignable, as the Veteran's disability picture does not meet the criteria for the next higher rating with flexion actually limited to 30 degrees or so restricted on the basis of a functional loss due to pain. Throughout the period on appeal, the Veteran's service-connected left knee disability has been manifested by symptoms including limitation of flexion with painful motion, swelling, and locking. In order to warrant a higher evaluation of 20 percent, the Veteran must have the actual or functional equivalent of limitation of flexion to 30 degrees, which is not shown by the record. See 38 C.F.R. § 4.7; DeLuca, supra. The flexion measurements on VA examination show, at worse, flexion to 60 degrees with pain. The Board does note the VA treatment record in April 2012 showing limited flexion to 30-40 degrees; however, viewing this record in conjunction with the remainder of the evidence, the Board finds this one-time measurement alone does not support a finding of an overall disability picture higher than that already assigned. In reaching this determination, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the service-connected left knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating, and no higher. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond that already assigned. The Board has considered the lay evidence of record, to include the Veteran's reports during VA examinations and her written submissions, in deciding this case. The Veteran is competent to report as to the symptoms she experiences and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even affording this lay evidence full competence and credibility, such evidence does not support a rating higher than the one currently assigned. The Board has also considered other possible diagnostic codes for rating this disability. See Schafrath, 1 Vet. App. at 595; 38 C.F.R. § 4.71a. In this regard, the Board notes again that the Veteran is in receipt of separate instability and limitation of extension ratings (Diagnostic Codes 5257 and 5261) that are not before the Board for consideration, but that do encompass her significant complaints of left knee impairment. The Board has considered, however, whether a higher or separate rating is warranted under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion in the joint. Based on the findings in the May 2012 MRI report, as noted in the September 2012 VA examination, there is an indication that the Veteran has a torn meniscus of her left knee, and the examiner recorded symptoms of frequent locking, pain, and effusion in the joint. Notwithstanding, neither these reports nor the remainder of the record, to include the Veteran's own statements, shows that the meniscus is dislocated. Moreover, the Veteran's primary symptoms of locking and pain are contemplated under the current rating assigned, with consideration of 38 C.F.R. § 4.59, and the Rating Schedule generally prohibits pyramiding (i.e., evaluating the same disability under different diagnostic codes). Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010) (pyramiding is disfavored "unless the regulation expressly provides otherwise."); 38 C.F.R. § 4.14. In regard to joint effusion, to the extent this symptom is not contemplated as part of the current arthritis-based rating, aside from the September 2012 VA examination, the remainder of the record reflects times that that effusion was infrequent, rather than frequent, as VA treatment records reflect often times negative, or trace evidence of effusion. To the extent effusion was more frequently present, the Board finds that the overall symptomatology shown by the Veteran's disability is consistent with the rating assigned at this time and this symptom does not cause the overall disability to be more appropriately rated under Diagnostic Code 5258. There is also no objective evidence of ankylosis, removed cartilage, malunion of the tibia or fibula, or genu recurvatum, and Diagnostic Codes 5256, 5259, 5262, or 5263 are accordingly not for application. Thus, on this record, the Board concludes that the weight of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the service-connected left knee disability on the basis of limitation of flexion. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. at 53. Consideration has also been given regarding whether the schedular evaluation in this case 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); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). An extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). 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 and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, 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 regard, the schedular criteria in this case are not shown to be inadequate. A rating in excess of 10 percent is provided for certain manifestations of the service-connected left knee disability, but the evidence reflects that those manifestations are not present in this case. The diagnostic criteria adequately describe the severity and symptomatology of this service-connected disability. Accordingly, on this record, this matter need not be referred for consideration of an extraschedular rating. ORDER An increased rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee associated with residuals, fracture, second toe, left foot with hammer toe and scar on plantar aspect of left foot is denied. REMAND The Board finds that further development is necessary prior to appellate handling of the Veteran's claim of service connection of a left hand and wrist disorder. In August 2012, the Board remanded this case to obtain any worker's compensation claim records or other VA records regarding the Veteran's work injury and claimed left hand and wrist injury, among other things. A November 2012 deferred rating decision indicates that the RO scheduled the Veteran for a VA examination in regard to this claim based on evidence of the work-related injury in the VA treatment records. In the December 2012 VA examination report, the examiner stated that it was likely that the Veteran's claimed left hand condition might have been aggravated by the fall, as shown by the hand surgery, but that she was not able to say so without the occupational health records referenced in the VA Medical Center (VAMC) in Tampa, Florida files. The examiner further indicated that it was possible that access to employee health records was not permitted to VA examiners within the facility, as the Veteran was an employee there. Based on this statement, it appears that there may be outstanding VA records pertinent to the Veteran's claim. As such, remand is warranted to make an additional attempt to obtain these records and provide them to the VA examiner. Accordingly, this remaining matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should undertake appropriate steps to obtain any outstanding and pertinent records related to the Veteran's VA work injury/worker's compensation claim, to include the VA occupational health records referenced by the December 2012 VA examiner. All development in this regard should be noted in the claims file, to include if additional efforts would be futile. 2. If additional records are obtained, the RO should forward the claims file to the VA examiner who provided the December 2012 VA opinion, or a suitable substitute if this examiner is unavailable, for a complete review of the claims file and preparation of an addendum opinion addressing the Veteran's claimed left hand and wrist disorder in light of this additional evidence. The supporting rationale for all opinions expressed must be provided. If the required opinion cannot be provided, the examiner should provide an explanation in the report. Additional examination is not required, unless requested by the examiner. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs