Citation Nr: 1328562 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 09-46 534A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating for left knee reconstruction and medial meniscectomy, status post replacement, in excess of 30 percent prior to May 6, 2013, and in excess of 60 percent from May 6, 2013. 2. Entitlement to a disability rating in excess of 20 percent for left biceps injury with thoracic outlet syndrome. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from April 1970 to March 1972 and from June 1974 to January 1978. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. When this case was previously before the Board in March 2013, the issues on appeal were remanded to the RO for additional development. A May 2013 rating decision assigned a 60 percent evaluation for the Veteran's left knee disability, effective May 6, 2013. The rating decision also granted service connection for neuralgia, ulnar nerve, left upper extremity (minor), evaluated as 10 percent disabling, effective May 6, 2013. The Veteran has not submitted a notice of disagreement with the effective date or evaluation of the neuralgia. A May 2013 supplemental statement of the case continued the 20 percent evaluation for the left biceps disability. The case is now before the Board for final appellate consideration. FINDINGS OF FACT 1. The competent medical, and competent and credible lay, evidence of record shows that, prior to May 6, 2013, the Veteran's left knee reconstruction and medial meniscectomy, status post replacement, resulted in severe painful motion. 2. The Veteran's 60 percent evaluation for left knee reconstruction and medial meniscectomy, status post replacement, is the maximum evaluation provided for prosthetic replacement of the knee joint more than one year after implantation. 3. The competent medical, and competent and credible lay, evidence of record does not show that the Veteran's left biceps injury with thoracic outlet syndrome results in limitation of motion of the left arm to 25 degrees from the side, unfavorable anklyosis of the left scapulohumeral articulation with abduction limited to 25 degrees from the side, or fibrous union of the left humerus. CONCLUSIONS OF LAW 1. The criteria for a 60 percent evaluation for left knee reconstruction and medial meniscectomy, status post replacement, prior to May 6, 2013, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257-5055 (2012). 2. The criteria for an evaluation in excess of 60 percent for left knee reconstruction and medial meniscectomy, status post replacement, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257-5055 (2012). 3. The criteria for an evaluation in excess of 20 percent for left biceps injury with thoracic outlet syndrome have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8519 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance 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). In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment. Vazquez- Flores v. Shinseki, 24 Vet. App. 94 (2010). Notice was provided in August 2007 letters. Accordingly, the duty to notify has been fulfilled. With regard to the duty to assist, the record contains the Veteran's service treatment records, VA medical records, records from the Social Security Administration (SSA), and the transcript of a November 2012 hearing before the undersigned Veterans Law Judge. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The development requested by the prior remand has been conducted. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA examinations were conducted in August 2007, August 2010 and May 2013. To that end, 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 VA examinations conducted in this case are more than adequate. Although the 2007 and 2010 VA examination reports state that the examiner did not review the Veteran's claims file, the evaluations were to assess the current levels of the disability. Each of the three examination reports considered the Veteran's medical history, including his lay reports of his symptomatologies; described the Veteran's disabilities in sufficient detail; and fully described the functional effects caused by the Veteran's disabilities. Stefl v. Nicholson, 21 Vet. App. 120 (2007). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). 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 his claim. Legal Analysis With respect to the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this 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 Court of Appeals for the Federal Circuit (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 claims. Disability evaluations are determined by comparing a veteran's present symptoms with criteria set forth in the 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. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). When a question arises as to which of two ratings applies under a particular code, the higher rating 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 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Left Knee Disability The Veteran's left knee disability is evaluated under Diagnostic Code 5257-5055. Under Diagnostic Code 5257, for recurrent subluxation or lateral instability, a 30 percent evaluation is the maximum evaluation. Under Diagnostic Code 5055, for prosthetic replacement of the knee joint, a 100 percent evaluation is warranted for one year following the implantation of the prosthesis. A 60 percent evaluation is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 60 percent rating is the maximum rating available following the one-year period after prosthetic replacement of the knee joint. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension of the leg), or 5262 (impairment of the tibia and fibula). These diagnostic codes do not provide an evaluation in excess of 60 percent. Normal range of motion for the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. Based on a thorough review of the record, the Board finds that the evidence supports a 60 percent evaluation for the Veteran's left knee disability before May 6, 2013, under Diagnostic Code 5055. The preponderance of the evidence is against an evaluation in excess of 60 percent for any part of the appeal period. The August 2007 VA examination relates that the Veteran underwent a total knee replacement in 2003. The Veteran's legs were asymmetrical, with evidence of mild atrophy on the left of 5/8 inch. Range of motion was from zero to 80 degrees, with pain at 80 degrees both active and passive. Range of motion during passive, active and three repetitive motions was the same. There was no additional functional impairment due to pain, weakness, fatigability, incoordination or flare-ups. The Veteran stated that he could walk only about 2 blocks before pain set in. He took Percocet about 10 times a month. His main difficulty was pain. The report of a February 2010 Informal Conference relates that the Veteran stated that he was unable to walk more than 11/2 blocks. The August 2010 VA examination found that the Veteran had active range of motion from zero to 80 degrees, with pain at 80 degrees. Range of motion during passive, active and three repetitive motions was the same. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination or flare-ups. During the November 2012 hearing, the Veteran described his left knee pain and limitation, and testified that he took medication for his left shoulder and knee disabilities. He described left knee pain with every step he took. The Board finds that the foregoing evidence shows that the Veteran has had severe painful motion in the left knee after the 2003 total knee replacement, warranting a 60 percent evaluation under Diagnostic Code 5055. The Board finds it significant that the May 2013 VA examination, on which the RO based its award of a 60 percent evaluation, shows the same range of flexion as those above (i.e., left knee flexion to 80 degrees, with painful motion beginning at 80). The Board has considered an evaluation in excess of 60 percent for any part of the appeal period. However, the 60 percent evaluation is the maximum schedular evaluation for prosthetic replacement of the knee joint more than one year after implantation. Diagnostic Code 5055. In this regard, the Board is aware of the Veteran's credible complaints of pain, made during VA examinations and the November 2012 hearing. As a general matter, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). However, since the Veteran is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether an increased in the disability evaluation is warranted under 38 C.F.R. §§ 4.40, 4.45, and DeLuca. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In addition, the "amputation rule" provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 60 percent rating is provided for an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71, Diagnostic Codes 5162, 5163 5164. Because the Veteran's disability is in the knee, or below the middle third of the thigh, the amputation rule precludes a schedular evaluation in excess of 60 percent. The Board also finds that the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability for any part of the appeal period. The discussion above reflects that the symptoms of the Veteran's left knee disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the Veteran's left knee disability results in painful motion. Diagnostic Code 5055 provides ratings based on painful motion or weakness. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for an extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008). In sum, the medical evidence demonstrates that the Veteran is entitled to a 60 percent evaluation for left knee reconstruction and medial meniscectomy, status post replacement, prior to May 6, 2013. He is not entitled to an evaluation in excess of 60 percent for any part of the appeal period. As the preponderance of the evidence is against an evaluation in excess of 60 percent, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Left Biceps Disability The Veteran's left biceps disability is evaluated under Diagnostic Code 8519, for paralysis of the long thoracic nerve. Under this diagnostic code, a 20 percent evaluation is the maximum evaluation for the minor shoulder. In addition, under Diagnostic Code 5201, a 30 percent evaluation is warranted for limitation of motion of the minor arm to 25 degrees from the side. Under Diagnostic Code 5200, a 30 percent evaluation is warranted for unfavorable anklyosis of the minor scapulohumeral articulation, abduction limited to 25 degrees from the side. Under Diagnostic Code 5202, a 40 percent evaluation is warranted for fibrous union of the minor humerus. The normal range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent for the Veteran's left biceps disability. VA treatment records reflect treatment for the left shoulder disability and complaints of left shoulder pain during the appeal period. These records, and SSA records, are negative for any evidence showing entitlement to an increased evaluation under the above criteria. The report of the August 2007 VA examination provides that the Veteran had normal range of motion of the left shoulder, with both internal and external rotation, forward flexion and abduction without painful limitation. The report of the August 2010 VA examination provides that Veteran complained of continuous pain in the left upper extremity. He had been treated at VA with multiple injections and medications. He had left shoulder active range of motion of abduction zero to 70 degrees, internal rotation zero to 30 degrees, and external rotation zero to 30 degrees without painful limitation. The Veteran had marked atrophy of the supraspinatus and infraspinatus over the scapular area. Forward flexion was zero to 70 degrees, and extension and adduction were zero to 30 degrees, without painful limitation. The range of motion during passive, active and three repetitive motions was the same. There was no loss of joint function with use due to pain, weakness, fatigability, incoordination or flare-ups. During the November 2012 hearing, the Veteran described his left shoulder pain and testified that he took medication for his left shoulder and left disabilities. The report of the May 2013 VA examination provides that the Veteran had left shoulder flexion to 100 degrees, with pain beginning at 100 degrees. Abduction was to 100 degrees, with pain beginning at 100 degrees. The Veteran had no additional limitation in range of motion of the shoulder and arm following repetitive-use testing. After repetitive use, the Veteran did have less movement than normal, pain on movement and atrophy of disuse. The Veteran had no anklyosis of the left shoulder joint. There was mild atrophy of the let forearm due to underuse. The foregoing evidence simply does not show that the Veteran's left biceps disability satisfies the criteria for an evaluation in excess of 20 percent. The foregoing evidence fails to show limitation of motion of the left arm to 25 degrees from the side (Diagnostic Code 5201), unfavorable anklyosis of the left scapulohumeral articulation with abduction limited to 25 degrees from the side (Diagnostic Code 5200), or fibrous union of the left humerus (Diagnostic Code 5202). The Board is aware of the Veteran's complaints of pain, made during the examinations and the November 2012 hearing. As noted, lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone, supra. Lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, supra; see Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson, supra. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. The Veteran is not, however, competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's left biceps disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the medical records) directly address the criteria under which disabilities such as his are evaluated. The observable symptoms that the Veteran describes simply do not satisfy the criteria for an evaluation in excess of 20 percent. Moreover, the Board finds that the effects of pain reasonably shown by the record to be due to the Veteran's service-connected left biceps disability are contemplated in the currently assigned 20 percent evaluation. The relevant VA examinations simply do not show that pain, due to the service-connected left biceps disability, caused functional loss comparable to limitation of motion of the left arm to 25 degrees from the side (Diagnostic Code 5201), unfavorable anklyosis of the left scapulohumeral articulation with abduction limited to 25 degrees from the side (Diagnostic Code 5200), or fibrous union of the left humerus (Diagnostic Code 5202). The August 2010 VA examination found that there was no loss of joint function with use due to pain, weakness, fatigability, incoordination or flare-ups. The May 2013 VA examination found that the Veteran had no additional limitation in range of motion of the shoulder and arm following repetitive-use testing. 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Additionally, the record contains no indication that the rating criteria are inadequate to rate the Veteran's disability. The discussion above reflects that the symptoms of the Veteran's left biceps disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the Veteran's left biceps disability results in paralysis of the long thoracic nerve, limitation of left shoulder motion and pain. Diagnostic Codes 8519 and 5201 provide ratings based on paralysis of the long thoracic nerve and limitation of shoulder motion. The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Therefore, the Veteran's disability picture is contemplated by the rating schedule, the assigned evaluation is adequate, and no referral for an extraschedular consideration is required. See Thun, supra. In sum, the medical evidence demonstrates that the Veteran is not entitled to an evaluation in excess of 20 percent for service connection for left biceps injury with thoracic outlet syndrome. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; Ortiz, supra. ORDER A 60 percent evaluation for left knee reconstruction and medial meniscectomy, status post replacement, prior to May 6, 2013, is granted, subject to the rules and regulations governing the award of monetary benefits. An evaluation in excess of 60 percent for left knee reconstruction and medial meniscectomy, status post replacement, is denied. An evaluation in excess of 20 percent for service-connected left biceps injury with thoracic outlet syndrome is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs