Citation Nr: 1325518 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 11-17 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased evaluation for osteoarthritis of the left knee/residuals of left upper 1/3 tibial stress fracture (left knee disability), evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from December 1957 to December 1959. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in June 2013 and was remanded for further development. It has now returned to the Board for further appellate consideration. The Board finds that the RO substantially complied with the mandates of the remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 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). FINDINGS OF FACT Throughout the rating period on appeal, the Veteran's osteoarthritis of the left knee/residuals of left upper 1/3 tibial stress fracture (left knee disability), has been manifested by complaints of pain, limitation of motion, and instability; objectively there was no evidence of instability, and the Veteran has a range of motion of at least 120 degrees of flexion and no more than a loss of five degrees of extension; thus, exhibiting no more than slight knee disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left leg disability (osteoarthritis of the left knee/residuals of let upper 1/3 tibial stress fracture) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, and 5256 - 5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in November 2008. The claims file includes medical records, and the statements of the Veteran in support of his claim. The Board has considered the statements and 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 which VA has a duty to obtain. VA examinations/opinions were obtained in June 2009 and July 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate VA examinations/opinions. The reports include clinical examinations, diagnostic testing, and the Veteran's reported symptoms. The reports provide findings relevant to the criteria for rating the disability at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's 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). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45 (2012), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2012). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rating the tibia and fibula impairment Diagnostic Code (DC) 5262 provides that nonunion of the tibia and fibula with loss motion requirement a brace warrants a 40 percent evaluation. Malunion with marked knee or ankle disability warrants a 30 percent evaluation. Malunion with moderate knee or ankle disability warrants a 20 percent evaluation. Malunion with slight knee or ankle disability warrants a 10 percent evaluation. Flexion and Limitation of the Lower extremity DC 5260 provides a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. DC 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. In VAOPGCPREC 9 - 2004 (Sept. 17, 2004), it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Instability of the knee Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code (DC 5257), without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. DC 5257 is predicated on instability, rather than limitation of motion, therefore, an analysis under DeLuca does not apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence pertinent to the claim on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Historically, in an October 2008 decision, the Board denied an evaluation in excess of 10 percent for osteoarthritis of the left knee, residuals of a left upper one-third tibial stress fracture. Subsequently, in October 2008, the Veteran filed a claim for entitlement to an increased rating. He stated that his knee condition had changed and that he has severe arthritis of the knee and was contemplating a total knee replacement due to the change in his condition. He also stated that the joint was painful to the touch and he can no longer climb stairs. He stated that his range of motion had decreased significantly. A statement by Dr. J.H., dated in December 2008, reflects that the Veteran's gait has been affected by his knee osteoarthritis; however, no rationale was provided and Dr. J.H. did not discuss the Veteran's other disabilities of the back and lower extremities and how they may impact this gait. In this regard, the clinical records reflect that the Veteran has mid lumbar scoliosis convexing to the left, low back pain radiating into the left leg, marked varus deformity of the right knee, bunions on both feet, and severely deviated hallux on the left. As Dr. J.H. did not provide an adequate rationale, his opinion lacks probative value. The Board has considered the clinical records which reflect that the Veteran had complaints of the knee, to include pain, and difficulty squatting and climbing steps. The Board has also considered the VA examination reports. The Veteran underwent a VA examination in June 2009. The examination report reflects that the Veteran reported giving way, instability, pain, stiffness, weakness, decreased speed of joint motion, dislocation or subluxation one to three times a month, and severe weekly flare-ups. He denied deformity, incoordination, locking episodes, inflammation, and incapacitating episodes. He reported that he was unable to stand for more than a few minutes, and used a cane always. Upon physical examination in June 2009, the Veteran was noted to have antalgic gait. No instability or patellar or meniscus abnormality was found upon clinical examination. Left knee flexion was to 120 degrees. Left knee extension was not normal as it was limited by -5 degrees. There was objective evidence of pain following repetitive motion but no additional limitations after three repetitions of range of motion. Radiological findings in 2009were of a mildly osteoporotic tibia and fibula. Views of the left knee reflect an essentially negative knee. The examiner diagnosed the Veteran with degenerative joint disease of the left knee, residual arthralgia to the left tibia. The effect on chores, shopping, and traveling was severe. The disability was noted to prevent exercise and recreation. There was a moderate effect on bathing, dressing, toileting, grooming, and driving. In a statement dated in June 2010, the Veteran stated that since the June 2009 VA examination and the August 2009 rating decision, his left leg disability deteriorated and he had further limited range of motion and flexion with increased instability as well as difficulty negotiating obstacles such as stairs. The Veteran underwent another VA examination in July 2013. The report reflects that the Veteran had 130 degrees of flexion with no objective evidence of painful motion. He had no objective evidence of pain on left knee extension. The Board acknowledges that the report does not list an initial left knee extension range of motion, but the left knee post-test range of motion for extension was 0 degrees, or no limitation of extension. The use of the left knee to walk would require repetitive motion; thus, the post-test findings are the most probative as to the actual function of the knee. Moreover, as the Veteran's range of motion would be logically expected to be worse after testing, it can reasonably be assumed that he had no limitation of extension prior to repetitive testing. Flare-ups did not impact the Veteran's function. The examiner found that the Veteran did not have tenderness or pain to palpation for the joint line or soft tissues of either knee. Muscle strength of the left knee of extension and flexion was normal, or a 5 out of 5. The Board finds this normal muscle strength is probative as to the Veteran's disability severity. Upon clinical testing in 2013, no instability was found. He had normal stability (Lachman test), normal posterior stability (Posterior drawer test), and normal medial-lateral stability (valgus/varus test). There was also no evidence of recurrent patellar subluxation or dislocation and no abnormal meniscal condition. The examiner also noted that there was no joint effusion upon examination. There was bilateral lower extremity knee to foot edema secondary to vascular diseases. He had mild PF (patellofemoral) crepitus bilaterally, with no locking or popping. There was no heat or redness of the knees. His gait was steady using a walker. He had marked varus deformity of the right knee but none of the left. McMurray, drawer, valgus, varus stress and PF grind were all negative. Three radiology views of the left knee were taken. The impression was "no acute bony abnormalities involving the left knee, radiographically. The examiner stated that the July 2013 x-ray report shows mild patellofemoral narrowing, but "no femoral-tibial [degenerative joint disease] or decreased joint space. The PF narrowing/degenerative changes would not be more than expected for [a] 78 year old. I do not feel this would be related to his mid shaft, non displaced tibial fracture." Based on the evidence above, the Board finds that the Veteran's service-connected disability is no more than slight in nature. Words such as "mild", "slight", "moderate", " marked ", and " severe " are not defined in the VA Rating 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. The Board has considered the clinical findings, radiographic results, and the Veteran's complaints of pain, instability and limitation of motion. The Board finds that the objective clinical findings are the most probative as to the severity of the Veteran's disability, and finds that the Veteran's left leg disability is no more than slight. The Board has considered other pertinent diagnostic codes to determine if any would result in a higher or additional separate rating, but finds none. DC 5256 is not applicable because the medical evidence is against a finding of ankylosis associated with the Veteran's left knee disability. DC 5257 is not applicable as the record reflects that the Veteran does not have recurrent subluxation or lateral instability of the left knee. Although the Veteran has stated that he has instability, lay reports of the sensation of the Veteran's knee giving way or instability are subjective in nature. Joint instability can be objectively diagnosed upon clinical examination. The clinical evidence of record is against a finding of instability. In the Veteran's case, he was found to have no instability upon testing in 2009 or in 2013. With regard to DC 5258 and 5259, the evidence is against a finding of removal of semilunar cartilage or dislocated semilunar cartilage with frequent episodes of locking, pain and effusion; thus, those diagnostic codes are not applicable. DC 5260 is not applicable as the Veteran's flexion has not been limited to 60 degrees or less. DC 5261 is not applicable as the Veteran's extension is not limited to 10 degrees or more. DC 5263 is not applicable as the evidence is against a finding that the Veteran had genu recurvatum of the left knee. Based on the Veteran's complaints of pain, limitation of motion, and flare-ups, and the VA clinical objective findings, with consideration of DeLuca factors, the Board finds that a rating in excess of 10 percent is not warranted for any time period on appeal. Although a Veteran may complain of pain throughout a range of motion, in Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011), the Court held that a Veteran is not entitled to the maximum disability ratings under DCs 5260 and 5261 simply because the Veteran exhibits pain throughout range of motion. (In this regard, the Board also notes that the 2013 examiner did not find objective evidence of pain on motion.) The Veteran is 78 years old, and has scoliosis, low back pain radiating into the left leg, marked varus deformity of the right knee, bunions on both feet, and severely deviated hallux on the left. While the Veteran is competent to report how he feels, the Board finds that the objective clinical evidence is more probative with regard to the specific symptoms attributable to his service-connected disability of the left leg. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990) Extra-schedular Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) . The discussion above reflects that the rating criteria reasonably describe and contemplate the severity and symptomatology of the Veteran's service-connected left leg disability. The criteria consider that there are varying levels of disability, that pain may cause limitation of motion, and that a Veteran may have instability. The Board has considered the Veteran's statements; however, the objective clinical evidence does not reflect that the Veteran has any symptoms which have not been considered in the rating criteria. The rating criteria are broad enough to allow for symptoms to be considered as "marked", "moderate", or "slight" regardless of whether they are specifically noted in DCs 5256 - 5261 and 5263. Moreover, the evidence does not reflect that the Veteran's disability has caused frequent hospitalization or marked interference with work. Therefore, referral for consideration of an extra-schedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The evidence of record, as noted above, is against a finding that a claim for TDIU has been reasonably raised. The competent credible records are negative for a finding that the Veteran was unable to maintain substantial gainful employment due to his service-connected left leg disability which was no more than a slight disability. In addition, the 2013 VA examiner found that his left leg disability does not impact his ability to work. Based on the foregoing, the Board finds that a remand for RO consideration of entitlement to TDIU is not warranted. ORDER Entitlement to an increased evaluation for osteoarthritis of the left knee/residuals of let upper 1/3 tibial stress fracture (left knee disability), evaluated as 10 percent disabling, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs