Citation Nr: 1328940	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  06-00 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1. Entitlement to service connection for a low back disability, to include as due to a service-connected left knee disability.  

2. Entitlement to a disability evaluation in excess of 10 percent for left knee musculoligamentous strain with traumatic arthritis (left knee arthritis).  

3. Entitlement to an initial disability evaluation in excess of 10 percent for left knee instability prior to September 16, 2011, and to a compensable disability evaluation thereafter. 

4. Entitlement to an initial disability evaluation in excess of 10 percent for residuals of a right knee tibia fracture with osteoarthritis of the right knee (right knee disability).  


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

D. M. Ames, Counsel


INTRODUCTION

The Veteran had active service from June 1984 to July 1984 and from April 1986 to November 1987.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2005, November 2010, December 2011, and July 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In January 2008 and October 2008, the Board remanded the Veteran's back claim the RO for further development and it has now been returned to the Board.  

The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1. The Veteran's left knee arthritis manifests as, at worst, 125 degrees of flexion with pain at 125 degrees and normal extension to 0 degrees without pain.  

2. Prior to September 16, 2011, the Veteran's left knee was slightly unstable.  

3. From September 16, 2011 onward, the Veteran's left knee was stable.  

4. The Veteran's right knee disability manifests as, at worst, 110 degrees of flexion with pain at 110 degrees, normal extension to 0 degrees without pain, and slight recurvatum.  


CONCLUSIONS OF LAW

1. The criteria for a disability evaluation in excess of 10 percent for left knee arthritis have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5260 (2012).

2. The criteria for an initial disability evaluation in excess of 10 percent for left knee instability prior to September 16, 2011 were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012).

3. From September 16, 2011 onward, the criteria for a compensable disability evaluation for left knee instability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2012).

4. The criteria for an initial disability evaluation in excess of 10 percent for a right knee disability have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5010, 5262 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  The notice must be provided to the Veteran prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

However, if VCAA notice was not provided prior to the initial adjudication of the claim or if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009).

VA has satisfied its duty to notify by issuing pre-adjudication notice letters in February 2005, March 2006, March 2010, June 2010, and June 2011.  The letters advised the Veteran of what evidence was required to substantiate service connection, secondary service connection, and increased evaluation claims, and of his and VA's respective duties for obtaining evidence.  The March 2006, March 2010, June 2010, and June 2011 letters provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess, 19 Vet. App. at 473.  

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations in December 2005, May 2008, July 2010, April 2011, and September 2011.  The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests.  The examiners also provided rationales for their opinions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

This case was remanded in January 2008 and October 2008 so that an adequate examination and opinions regarding direct and secondary service connection could be obtained.  This was accomplished, as discussed above.  There was substantial compliance with the remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

II. Increased Evaluation Claims

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011).  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 nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 to be considered when making disability evaluations.  38 C.F.R. § 4.1.  Where an increase in the disability rating is at issue, as is the case with the Veteran's left knee arthritis claim, the present level of the Veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes, however, that the rule articulated in Francisco does not apply to the Veteran's left knee instability and right knee disability claims, because the appeal of these issues is based on the assignment of an initial evaluation following an initial award of service connection.  Fenderson v. West, 12 Vet. App. 119, 126  (1999).  Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  Fenderson, 12 Vet. App. at 126.  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Id.  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

A. Left Knee Arthritis

The Veteran's left knee arthritis is evaluated under Diagnostic Code 5260-5010, limitation of flexion of the leg and traumatic arthritis.  38 C.F.R. § 4.71a (2012).  Under DC 5010, the rater is instructed to rate traumatic arthritis as degenerative arthritis, DC 5003.  Under DC 5003, the disability is evaluated based upon limitation of motion of the affected part.  When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a.  

The Veteran has arthritis in his left knee.  However, there is no evidence that it is present in any other major joint groups of his left lower extremity.  Further, there is no evidence of record that he has ever had an incapacitating exacerbation.  Therefore, the 20 percent criteria under Diagnostic Code 5003 have not been met.  38 C.F.R. § 4.71a.  

There are two Diagnostic Codes for limitation of motion of the knee, they provide criteria for limitation of flexion and extension of the leg.  When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

The provisions of 38 C.F.R. § 4.59, which relates to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable evaluation is warranted when flexion is limited to 60 degrees.  A 10 percent evaluation is warranted when flexion of the leg is limited to 45 degrees.  A 20 percent evaluation is warranted when flexion is limited to 30 degrees.  38 C.F.R. § 4.71a.  Normal flexion is 140 degrees.  38 C.F.R. § 4.71, Plate II. 

Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable evaluation is warranted when extension is limited to 5 degrees.  A 10 percent evaluation is warranted when extension of the leg is limited to 10 degrees.  A 20 percent evaluation is warranted when extension is limited to 15 degrees.  38 C.F.R. § 4.71a.  Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. 

The Board is bound in its decisions by the regulations of the Department, instructions of the Secretary, and precedent opinions of the General Counsel of the VA.  38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2012).  Separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261.  VAOPGCPREC 9-2004 (2004).  For the entirety of the appeal period, the Veteran's extension was normal at 0 degrees without pain.  Therefore, his extension does not more closely approximate a limitation to 5 degrees, which is required for a noncompensable evaluation under Diagnostic Code 5261.  38 C.F.R. § 4.71a.  Because his limitation of extension does not meet the criteria for a noncompensable evaluation, a separate evaluation for limitation of extension under Diagnostic Codes 5261 is not warranted during the appeal period.  VAOPGCPREC 9-98 (1998); VAOPGCPREC 9-2004 (2004). 

In February 2010, Dr. T. M., the Veteran's private physician, stated that the Veteran had a long history of knee pain that had worsened over the previous several months.  He had joint line tenderness medially and mild patellofemoral crepitus.  His ranges of motion were "good," and his strength and reflexes were both intact.  

In April 2010, Dr. T. M. noted that the Veteran had increasing pain that was worse with activity and better after resting.  Dr. T. M. diagnosed arthritis.  

In July 2010, the Veteran underwent a VA examination.  He stated that he worked as a bricklayer for 22 years, but had been laid off.  He denied having flare ups but reported a constant, dull pain.  His pain was aggravated by using stairs and ladders, particularly when carrying weight.  He did not report additional functional impairments.  Upon examination, his gait was normal.  He was able to walk on his heels but had problems walking on his toes "because of an unrelated neurologic problem."  There was no effusion or tenderness.  His left knee could "comfortably and repeatedly flex to 140 degrees ... without pain."  The examiner stated that fatigue, weakness, and lack of endurance were not significant factors.  Based upon x-ray evidence, the examiner diagnosed degenerative joint disease (DJD) of the left knee.  

In September 2011, the Veteran underwent a VA joints examination.  He was diagnosed with osteoarthritis and an anterior cruciate ligament (ACL) tear of the left knee.  The Veteran denied flare-ups.  Upon examination, his left knee flexion was 125 degrees with pain at 125 degrees.  After repetitive motion testing, he had no additional limitation of motion, functional loss, or functional impairment.  The examiner found that his knee had less movement than normal, weakened movement, incoordination, painful motion, deformity, and disturbance of locomotion.  His knee was not tender to palpation.  His strength upon flexion and extension was normal at 5/5.  

There is no other medical or lay evidence of record showing range of motion measurements.  Based upon the findings of the September 2011 VA examiner, the Veteran's flexion during the appeal period was, at worst, 125 degrees with pain at 125 degrees and no additional loss of motion or functional impairment after repetitive motion.  There is no evidence that his flexion was limited to 30 degrees, which is the required criterion for a 20 percent evaluation under Diagnostic Code 5260.  38 C.F.R. § 4.71a.  

The Board acknowledges the Veteran's subjective reports of pain.  The Court has held, however, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance."  Id., quoting 38 C.F.R. § 4.40.  The Veteran's 10 percent evaluation was granted based upon x-ray evidence and painful motion.  His subjective complaints of pain have already been taken into account, and are not such that they cause his limitation of flexion to more closely approximate a higher evaluation.  

In summary, the preponderance of the evidence is against the claim for a compensable disability evaluation under Diagnostic Code 5260-5010 so the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.  There is no evidentiary basis upon which to assign a 20 rating and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating.  Hart, 21 Vet. App. at 505.  

B. Left Knee Instability

VA's General Counsel has held that a claimant who has arthritis as shown by x-ray and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997).  In an July 2012 rating decision, the RO granted a separate 10 percent evaluation for slight instability of the left knee, effective February 26, 2010, the date of his claim.  Effective September 16, 2011, the RO assigned a noncompensable evaluation based upon findings at the Veteran's VA examination.  

Under DC 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability.  A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability.  A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a.  DC 5257 is based upon instability and subluxation, not limitation of motion, as a result, the criteria set forth in DeLuca do not apply.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6

In February 2010, Dr. T. M. noted that the Veteran walked with a mildly antalgic gait favoring his left knee.  "Good" patellofemoral tracking was noted.  In April 2010, Dr. T. M. stated that the Veteran had "continued instability associated with ACL insufficiency."  

At his July 2010 VA examination, the Veteran reported that his left knee was both painful and unstable, "with a tendency to buckle."  He stated that his knee did not lock.  Upon examination, the Veteran's ligaments were stable to varus and valgus stress in both complete extension and flexion.  His anterior instability (Lachman) test was 1+, indicating slight instability.  The examiner noted that the Veteran had ligamentous instability and that the Veteran's knee condition had slightly deteriorated "primarily because of pain and instability."   

Prior to September 16, 2011, the evidence showed that the Veteran sometimes walked with an antalgic gait to favor his left knee.  He also had subjective complaints of his knee buckling.  Dr. T. M. stated that the Veteran had "continued" instability in his knee.  At his July 2010 VA examination, his anterior instability test indicated slight instability.  The Veteran has not submitted lay evidence in support of his instability claim other than statements from his attorney that address the medical evidence discussed above.  

Based upon the findings of the July 2010 examiner, the Veteran had an anterior drawer test of 1+, indicating slight instability.  Dr. T. M. noted that the Veteran had instability but did not state to what degree.  The severity of the Veteran's left knee instability are mainly subjective with the exception of the findings of the July 2010 examiner.  The severity does not reach the level of moderate, which is needed for a 20 percent evaluation under Diagnostic Code 5257.  

The preponderance of the evidence is against the claim for a 20 percent evaluation under Diagnostic Code 5257 for instability of the left knee prior to September 16, 2011, so the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.  

There is no evidentiary basis upon which to assign a compensable rating as of September 16, 2011. At his September 16, 2011 VA examination, the Veteran's anterior, posterior, and medial/lateral instability tests were normal.  The examiner found that there was no evidence or history of recurrent patellar subluxation or dislocation.  Following this examination, there is no other medical or lay evidence of record pertaining to the knee.  

The findings of the September 16, 2011 examiner are the basis of the RO's decision to assign a noncompensable disability evaluation for the Veteran's left knee instability.  This was because all of the Veteran's joint stability tests were normal.  The Veteran did not report instability or use an assistive device.  

With regard to other potentially applicable Diagnostic Codes for the Veteran's left knee disabilities for the duration of the appeal period, the Veteran's left knee has never been ankylosed, there was no malunion or nonunion of the tibia and fibula, there were no symptoms from the removal or dislocation of semilunar cartilage, and no findings of genu recurvatum.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263 (2012); see also VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998).  Accordingly, application of these Diagnostic Codes is unwarranted.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of Diagnostic Code should be upheld if supported by explanation and evidence).

Because the September 2011 VA examination shows the Veteran's knee to be completely stable with no subsequent medical or lay evidence supporting a finding of slight instability, the noncompensable disability evaluation under Diagnostic Code 5257 is appropriate.  The preponderance of the evidence is against the claim for a compensable evaluation under Diagnostic Code 5257 for instability of the left knee following September 16, 2011, so the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.  There is no evidentiary basis upon which to assign a compensable rating and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating.  Hart, 21 Vet. App. at 505.  

For the appeal period, the Board has considered whether referral for an extraschedular rating is appropriate for the Veteran's left knee arthritis and instability under the provisions of 38 C.F.R. § 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

As described above, the manifestations of the Veteran's left knee are contemplated by the schedular criteria that compensate for painful limitation of motion and instability; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule.  In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating.  Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order.  Id.  

C. Right Knee Disability

The Veteran's right knee disability is evaluated under Diagnostic Code 5010-5262, traumatic arthritis and impairment of the tibia and fibula.  The diagnostic criteria for traumatic arthritis are noted above.  Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent evaluation.  A 20 percent evaluation is warranted for malunion of the tibia and fibula with moderate knee or ankle disability.  38 C.F.R. § 4.71a.  The medical evidence of record does not show that the Veteran has malunion of the tibia and fibula.  Instead, it shows that he has a healed fracture of the proximal tibia with mild to moderate DJD.  The RO granted a 10 percent evaluation for the Veteran's right knee disability based upon painful limitation of motion.  The RO also stated that the 10 percent rating was for malunion of the tibia and fibula with slight knee disability.  However, as noted above, the Veteran does not have malunion of the tibia and fibula and therefore a 20 percent evaluation under Diagnostic Code 5262 is not warranted.  Id.  The Board will consider other potentially applicable Diagnostic Codes.  

The Veteran has arthritis in his right knee.  However, there is no evidence that it is present in any other major joint groups of his right lower extremity.  Further, there is no evidence of record that he has ever had an incapacitating exacerbation.  Therefore, the 20 percent criteria under Diagnostic Code 5003 have not been met.  38 C.F.R. § 4.71a.  

In February 2010, Dr. T. M. stated that the Veteran's proximal tibia fracture healed in "slight recurvatum."  He had joint line tenderness and mild patellofemoral crepitus.  His symptoms were not exaggerated by the McMurray test.  His ligaments were stable.  His range of motion was normal, as were his strength and distal pulses.  In April 2010, Dr. T. M. stated that the Veteran's proximal tibia fracture was "...well healed, but in a little bit of recurvatum, that is not really very significant for him or a problem at this time."  

At his September 2011 VA examination, the Veteran reported right knee pain and stiffness.  He stated that the pain was "tolerable" on a day to day basis, but that physical work makes the pain worse.  He did not report flare ups.  His flexion was 110 degrees with pain at 110 degrees.  His extension was normal with no objective evidence of pain.  After repetitive motion testing, he did not have additional limitation of motion, functional loss, or functional impairment.  The examiner found that his knee had less movement than normal, weakened movement, incoordination, painful motion, deformity, and disturbance of locomotion.  His knee was not tender to palpation and his strength of flexion and extension was normal at 5/5.  His anterior, posterior, medial, and lateral instability tests were normal.  There was no evidence of recurrent patellar subluxation or dislocation.  He had not had a right meniscal condition or meniscectomy.  He did not use assistive devices.  The examiner concluded that the Veteran's right knee disability impacted his ability to perform physically demanding labor.  A November 2011 x-ray showed mild narrowing of the medial knee joint space, hypertrophic degenerative changes, and mild deformity of the medial proximal tibia suggesting an old, healed fracture.  

The medical and lay evidence of record does not show that the Veteran reported instability in his right knee.  The September 2011 examiner noted that his right knee was stable, as shown by normal results of objective testing.  Therefore, his disability picture does not more closely approximate at 20 percent evaluation for moderate instability under Diagnostic Code 5257.  

The Veteran has some loss of flexion, at worst it is 110 degrees with pain at 110 degrees.  Even when considering pain, it does not more closely approximate a 20 percent evaluation under Diagnostic Code 5260, which requires that flexion be limited to 30 degrees.  38 C.F.R. § 4.71a.  Further, his right knee extension has always been normal at 0 degrees without pain.  Therefore, his disability picture does not more closely approximate a 20 percent evaluation under Diagnostic Code 5261, which requires that extension be limited to 15 degrees.  Id.  

The Board acknowledges the Veteran's subjective reports of pain.  The Court has held, however, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system."  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance."  Id., quoting 38 C.F.R. § 4.40.  The Veteran's 10 percent evaluation was granted in part because of  painful motion.  

Further, neither the Veteran's limitation of flexion nor extension meets the criteria for a noncompensable evaluation under Diagnostic Codes 5260 or 5261, which require that flexion be limited to 60 degrees or extension to 5 degrees.  38 C.F.R. § 4.71a.  Therefore separate evaluations for limitation of flexion and extension are not warranted during the appeal period.  VAOPGCPREC 9-98 (1998); VAOPGCPREC 9-2004 (2004). 

Dr T. M. stated that the Veteran's proximal tibia fracture healed in slight recurvatum that was "not very significant."  Under Diagnostic Code 5263, genu recurvatum, a 10 percent evaluation is warranted when there is objectively demonstrated weakness and insecurity during weight-bearing.  38 C.F.R. § 4.71a.  A 10 percent evaluation is the maximum available rating under this Diagnostic Code, and therefore it is not more favorable to the Veteran.  

With regard to other potentially applicable Diagnostic Codes for the Veteran's right knee disability, for the duration of the appeal period, the Veteran's right knee has never been ankylosed and there were no symptoms from the removal or dislocation of semilunar cartilage.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259 (2012); see also VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998).  Accordingly, application of these Diagnostic Codes is unwarranted.  See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of Diagnostic Code should be upheld if supported by explanation and evidence).

The preponderance of the evidence is against the claim for an initial disability evaluation in excess of 10 percent for a right knee disability, so the benefit of the doubt rule is not applicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 54-56.  There is no evidentiary basis upon which to assign a compensable rating and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating.  Hart, 21 Vet. App. at 505.  

As described above, the manifestations of the Veteran's right knee are contemplated by the schedular criteria that compensate for arthritis with painful limitation of motion; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule.  In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating.  Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

When entitlement to a total disability rating based on individual unemployability (TDIU) under the provisions of 38 C.F.R. § 4.16 is raised during the adjudicatory process of evaluating the underlying disabilities, it is part of the claim for benefits for the underlying disabilities. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001).

The Veteran, through his attorney, asserted in his September 2012 Notice of Disagreement that his employment was terminated as a result of his service-connected disabilities.  However, the evidence does not show that the Veteran's disabilities have caused unemployability.  Rather, VA examiners have concluded that the Veteran's knee disabilities impact his ability to perform physically demanding work.  They have not found that the disabilities render him unemployable.  Because there is no evidence of unemployability, further consideration of entitlement to TDIU is not required.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 


ORDER

A disability evaluation in excess of 10 percent for left knee arthritis is denied.  

An initial disability evaluation in excess of 10 percent for left knee instability prior to September 16, 2011, and a compensable disability evaluation thereafter is denied.   

An initial disability evaluation in excess of 10 percent for a right knee disability is denied.  


REMAND

In May 2008, a VA examiner found that the Veteran's low back disability was not caused or aggravated by his service connected left knee disability because he had a "perfectly normal gait" upon examination.  Further, there was "no evidence" of instability and there was "...nothing whatsoever in his gait or in his history that would indicate that the left knee problem has any effect whatsoever on the lower back condition."  

Since the May 2008 examination, Dr. T. M. found in February 2010 that the Veteran walked with a mildly antalgic gait favoring his left knee.  Further, a November 2011 VA opinion rendered in conjunction with his claim for service connection for a right knee disability as secondary to his service-connected left knee disabilities noted that, "[a]s pain in one knee worsens, this leads to favoring of the other knee."  

There is evidence that the Veteran's gait was abnormal and that he favored his left knee following the May 2008 examination.  Therefore a new examination is warranted so that an updated opinion regarding secondary service connection may be obtained.  The opinions of record regarding direct service connection are adequate and further supplemental opinions regarding direct service connection are not warranted.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an examination with an appropriate clinician.  

The purpose of the examination is to determine whether the Veteran has a low back disability that was caused or aggravated by his service-connected bilateral knee disabilities. 

The following considerations will govern the opinion:

a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. 

b) The examiner must take a detailed history from the Veteran.  If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. 

c) The examiner must provide an opinion as to whether the Veteran's low back disability was caused or aggravated by his service-connected knee disabilities.  The examiner must specifically address whether the Veteran favors one knee over the other, and if so, whether it caused or aggravated his low back disability.  

d) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. 

e) If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state.  A complete explanation for such a finding must be provided.  

2. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal.  If the benefit sought on appeal remain denied, in whole or in part, the Veteran and his attorney should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs