Citation Nr: 1328142 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-14 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for residuals of a left knee arthrotomy with osteochondritis dissicans, currently rated as 20 percent disabling prior to December 3, 2008, 100 percent disabling from December 3, 2008 to March 1, 2010, and 30 percent disabling thereafter. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability. 3. Entitlement to service connection for a left hip disability, to include as secondary to service-connected left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to May 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, continued a 20 percent evaluation for the service-connected left knee disability and found that new and material evidence had not been received to reopen a claim for entitlement to service connection for a left hip disability. 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 reopened issue of entitlement to service connection for a left hip disability 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. During the period prior to December 3, 2008, the Veteran's left knee disability manifested pain and limitation of motion with flexion to 106 degrees and extension to -5 degrees; there was no instability, ankylosis, or impairment of the tibia and fibula. 2. During the period beginning March 1, 2010, the Veteran's left knee disability status post total knee replacement manifested intermediate degrees of residual pain and limitation of motion with flexion to 85 degrees and full extension to 0 degrees without impairment of the tibia and fibula or severe painful motion or weakness. 3. The claim for service connection for a left hip disability was initially denied in an unappealed October 2004 rating decision. 4. The evidence received since the October 2004 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a left knee arthrotomy with osteochondritis dissicans during the period prior to December 3, 2008 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256-5262 (2012). 2. The criteria for a rating in excess of 30 percent for residuals of a left knee arthrotomy with osteochondritis dissicans status post total knee replacement during the period beginning March 1, 2010 are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5055, 5260-5262. 3. New and material evidence has been received and the claim for entitlement to service connection for a left hip disability, to include as secondary to a service-connected left knee disability, is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim Service connection for residuals of a left knee arthrotomy with osteochondritis dissicans was granted in a January 2003 rating decision with an initial 10 percent evaluation assigned effective May 24, 2002. The February 2009 rating decision on appeal continued a 20 percent evaluation for the left knee disability. Two months later, in an April 2009 rating decision, a temporary 100 percent evaluation was assigned following a left total knee replacement which necessitated convalescence effective December 3, 2008 and a 30 percent evaluation was assigned for the period beginning March 1, 2010. The Veteran's service-connected left knee disability is therefore rated as 20 percent disabling prior to December 3, 2008, 100 percent disabling for the period between December 3, 2008 and March 1, 2010, and 30 percent disabling thereafter. As the Veteran is in receipt of a total schedular rating for the period from December 3, 2008 to March 1, 2010, the Board will not consider whether an increased evaluation is warranted during this period. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the period prior to December 3, 2008, the Veteran's left knee disability is currently evaluated under Diagnostic Code 5261, pertaining to limitation of extension of the leg. Under this diagnostic code, a noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent evaluation is warranted for extension limited to 10 degrees and a 20 percent evaluation is assigned when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A separate rating is also possible for limitation of flexion which is rated under Diagnostic Code 5260. This diagnostic code provides for a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent evaluation is appropriate if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. 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, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, 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. During the period prior to December 3, 2008, the Veteran did not manifest limitation of motion of the left knee that most nearly approximates a rating in excess of 20 percent. Flexion and extension were most limited during a September 2008 VA examination when flexion measured to 106 degrees with pain and extension was measured to -15 degrees. Flexion limited to 106 degrees is noncompensable under Diagnostic Code 5260 while extension limited to -15 degrees is contemplated by the currently assigned 20 percent evaluation under Diagnostic Code 5261. With respect to functional factors, the September 2008 VA examiner did not find any change to range of motion following repetitive testing. While the Veteran complained of pain throughout range of motion testing, the Court of Appeals for Veterans Claims (Court) has held that pain may cause a functional loss, but pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet.App. 32 (2011). 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. Id. at 11; see also Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant); Spurgeon v. Brown, 10 Vet. App. 194 (1997) (38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function). In this case, the Veteran did not manifest any additional loss of left knee motion during repetitive testing at the September 2008 VA examination despite complaints of pain throughout all ranges of motion. Thus, even with consideration of the relevant functional factors, a rating in excess of 20 percent for limitation of motion and/ or a separate rating for limitation of flexion during the period prior to December 3, 2008 is not warranted. The Board has also considered whether an increased or separate evaluation is warranted under Diagnostic Code 5257 pertaining to instability of the knee. Under this diagnostic code, knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In this case, the Veteran's left knee has not demonstrated subluxation or instability at any time during the period prior to December 3, 2008. The Veteran's left knee was consistently stable upon examinations conducted throughout the relevant claims period. The September 2008 VA examiner specifically found that there was no objective evidence of instability or episodes of subluxation and similar findings were made by the Veteran's private orthopedist during an examination performed in October 2008. An increased or separate rating is therefore not appropriate under Diagnostic Code 5257. The Veteran has also been diagnosed with degenerative changes of the knee. Under Diagnostic Code 5003 pertaining to degenerative arthritis, a 10 percent evaluation is assigned when limitation of motion is noncompensable for a major joint or group of minor joints. 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 Veteran is currently in receipt of a 20 percent evaluation for limitation of extension of the knee and a separate rating for noncompensable limited motion under Diagnostic Code 5003 is not possible. Additionally, the Veteran's is already in receipt of a 20 percent rating, the maximum possible under Diagnostic Code 5003 (associated with X-ray evidence of involvement of 2 or more major or minor joints and occasional incapacitating episodes). Thus, an increased rating is not warranted under Diagnostic Code 5003 at anytime during the period prior to December 3, 2008. The other criteria for rating the knee and leg provide for ratings in excess of 20 percent with evidence of knee ankylosis or impairment of the tibia and fibula. It is clear that the Veteran has retained some useful motion of his left leg during the period prior to December 3, 2008 and a rating in excess of 20 percent is not warranted under Diagnostic Code 5256 for knee ankylosis. Similarly, there is no indication that the Veteran's service-connected knee disability contemplates impairment of the tibia and fibula. An increased evaluation is therefore not appropriate under Diagnostic Code 5262 and the Veteran's left knee disability is properly rated as 20 percent disabling during the period prior to December 3, 2008. As noted above, the Veteran underwent a left total knee replacement on December 3, 2008, and a temporary total rating was assigned for a surgical procedure necessitating convalescence from December 3, 2008 to March 1, 2010. For the period beginning March 1, 2010, the disability is currently rated as 30 percent disabling. The Rating Schedule provides for a specific diagnostic code for rating the residuals of a knee replacement with prosthesis in 38 C.F.R. § 4.71a, Diagnostic Code 5055. In the April 2009 rating decision issued in response to the total knee replacement, the RO changed the diagnostic code used to rate the Veteran's condition to Diagnostic Code 5055-5261. The hyphenated diagnostic code indicates that the Veteran's total knee replacement has resulted in limitation of extension. Under Diagnostic Code 5055, prosthetic replacement of a knee joint is rated 100 percent for 1 year following implementation of the prosthesis. Thereafter, with chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. With intermediate degrees of residual weakness, pain or limitation of motion, a rating is made by analogy to Diagnostic Codes 5256, 5261 and 5262. The minimum rating is 30 percent under this diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The Veteran is in receipt of a 100 percent evaluation from December 3, 2008 to March 1, 2010, a period longer than the one year specified by Diagnostic Code 5055. The Board will not disturb this rating and instead must determine whether the left knee disability most nearly approximates a rating in excess of 30 percent for the period beginning March 1, 2010. Under Diagnostic Code 5055, a 60 percent rating is possible for residuals of a total knee replacement consisting of severe painful motion or weakness. Although the Veteran has complained of left knee pain during the period beginning March 1, 2010, upon VA examination in December 2012 the Veteran reported that he had reasonably good pain control post-total knee replacement. Furthermore, the December 2012 VA examiner found that the Veteran did not manifest severe painful motion or weakness; instead, the Veteran's only left knee deficit was identified as limitation of flexion. The Board therefore finds that the Veteran's left knee condition does most nearly approximate the specific criteria associated with an increased rating under Diagnostic Code 5055. Diagnostic Code 5055 also provides that a rating may be made to analogy under a Diagnostic Codes 5256, 5261 and 5262 with intermediate degrees of residual weakness, pain or limitation of motion. The currently assigned 30 percent evaluation is the minimum rating possible following a knee replacement. With respect to limitation of motion, the Veteran's knee demonstrated flexion to 85 degrees with full extension to 0 degrees during the December 2012 VA examination. These findings were reported after repetitive testing and with consideration of the Veteran's complaints of pain at the endpoint of range of motion testing. Even with consideration of functional factors, the Veteran's range of motion of the left knee at the December 2012 VA examination is contemplated by noncompensable evaluations under Diagnostic Codes 5260 and 5261. There is also no evidence of impairment to the tibia and fibula to allow for a rating in excess of 30 percent under Diagnostic Code 5262. A higher rating is therefore not warranted for the Veteran's left knee disability for the period beginning March 1, 2010. In sum, the Board finds that an increased schedular rating is not warranted for the Veteran's residuals of a left knee arthrotomy with osteochondritis dissicans. The Board has considered whether there is any other schedular basis for granting a higher rating at any time during the claims period, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The left knee condition is manifested by symptoms such as pain and limitation of motion. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the disability and referral for consideration of extraschedular rating is not warranted. Entitlement to a TDIU is also an element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits and there is no medical evidence that the Veteran's left knee disability has interfered with his employment. The December 2012 VA examiner specifically found that the Veteran's disability had no effect on his ability to work and the Veteran has not stated that he has lost any time from work or is unable to perform his duties due to the service-connected left knee condition. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected residuals of a left knee arthrotomy. Claim to Reopen The Veteran's claim for entitlement to service connection for a left hip condition was denied in an October 2004 rating decision. The RO found that the record did not establish the presence of a link between the Veteran's service-connected left hip disability or active duty service. Although the Veteran initiated an appeal with respect to the denial of his claim and a statement of the case (SOC) was issued in January 2006, the appeal was never perfected and the October 2004 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence received since the October 2004 rating decision includes records of treatment from the Veteran's private orthopedist. In June 2004, the Veteran complained of left hip pain and the private orthopedist noted that the Veteran's left hip tenderness was consistent with end stage left knee arthritis and an antalgic limp causing chronic bursitis. The Board finds that this evidence is new as it was not previously considered and is also material as it relates to a previously unestablished fact in the claim-a possible relationship between the Veteran's left hip condition and the service-connected left knee disability. Thus, the report of a June 2004 private orthopedic evaluation is sufficient to reopen the claim for entitlement to service connection. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Given the favorable nature of the Board's decision to reopen the claim for entitlement to service connection for a left hip disability, the Board concludes that further discussion of the new and material claim-with respect to VA's duties to notify and assist-is not necessary. Regarding the claim for entitlement to an increased rating for a left knee disability, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an August 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the August 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA examinations in September 2008 and December 2012 in response to his claim for an increased rating. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 20 percent for residuals of a left knee arthrotomy with osteochondritis dissicans during the period prior to December 3, 2008 is denied. Entitlement to a rating in excess of 30 percent for residuals of a left knee arthrotomy with osteochondritis dissicans status post total knee replacement during the period beginning March 1, 2010 is denied. New and material evidence having been received, reopening of the claim for entitlement to service connection for a left hip disability, to include as secondary to a service-connected left knee disability is granted. REMAND The Board finds that additional development is necessary before a decision may be rendered with respect to the reopened claim for entitlement to service connection for a left hip disability. Specifically, a VA examination is necessary to determine the nature and etiology of the Veteran's left hip osteoarthritis. The Veteran was provided a VA examination of his hip in June 2004, but the medical opinion provided in a September 2004 report is not adequate. The September 2004 VA physician concluded that the Veteran's left hip pain was associated with a generalized degenerative process involving multiple joints and was therefore not the result of a left knee injury during active duty service. The Board finds that this medical opinion does not address the central question at issue in this case-whether a chronic left hip condition is caused or aggravated by the Veteran's current left knee disability, not whether it is related to an in-service injury. The Veteran contends that his left knee disability has resulted in an abnormal gait which in turn led to the development of left hip arthritis. The September 2004 VA medical opinion is not responsive to this contention and the Board notes that the record contains private medical evidence dated from June 2004 in favor of the Veteran's claim. Once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). As the September 2004 VA medical opinion is not adequate, the Veteran should be provided an additional VA examination and medical opinion to determine the etiology of the disability on appeal. Accordingly, the case 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. Send the Veteran a letter that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) including notice regarding service connection for a hip disability as directly due to active duty service. 2. Afford the Veteran a VA examination to determine the nature and etiology of the claimed left hip disability. The claims file must be provided to the examiner and reviewed in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner is requested to offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any diagnosed left hip disability is caused or aggravated by the Veteran's service-connected left knee condition. The Veteran contends that his left knee disability has resulted in an abnormal gait which is the cause of his current left hip disorder. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a SSOC before returning the case to the Board, 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs