Citation Nr: 1331117 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 05-06 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating in excess of 10 percent as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to January 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2004 and August 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In an October 2009 decision, the Board remanded the case for additional development and adjudicative action. The case was returned to the Board for further appellate review, and in a July 2011 decision, the Board, in pertinent part, (1) denied an increased rating in excess of 10 percent for postoperative residuals of a right knee injury under Diagnostic Codes (DCs) 5257-5260, (2) assigned a separate 10 percent rating as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee injury under DC 5003, and (3) granted an initial rating of 10 percent, but no more, for left carpal tunnel syndrome for the entire initial rating period on appeal. The Veteran appealed the Board's July 2011 decision for these issues to the United States Court of Appeals for Veterans Claims (Court). By order dated January 2013, the Court issued a Memorandum Decision, set aside the July 2011 Board decision for the issues of (1) an increased rating in excess of 10 percent as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee injury under DC 5003 and (2) an initial rating in excess of 10 percent for left hand carpal tunnel syndrome, and remanded these issues to the Board for compliance with the terms of the Memorandum Decision. In a June 2013 decision, the Board denied an initial rating in excess of 10 percent for left hand carpal tunnel syndrome, and remanded the issue of an increased rating in excess of 10 percent as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee injury under DC 5003 for additional development and adjudicative action. The remaining issue has been returned to the Board for further appellate review. Pursuant to the July 2011 decision, it still does not appear that the RO has effectuated the assigned separate 10 percent rating as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee under DC 5003. This was also noted in the introduction of the Board's June 2013 decision. The RO should take this opportunity to implement the Board's prior grant and assign a 10 percent rating for limitation of motion due to arthritis under DC 5003 as of May 24, 2006. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. On May 24, 2006, arthritis of the right knee was demonstrated. 3. As of May 24, 2006, limitation of motion due to arthritis as a postoperative residual of a right knee injury more closely approximates manifestations of pain, full extension to 0 degrees, limited flexion, at worst, to 100 degrees, and no occasional incapacitating exacerbations or additional functional loss during flare-ups. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee injury have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by an April 2004 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for an increased evaluation for his service-connected disability, the evidence must show that such disability has gotten worse. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, a March 2008 supplemental statement of the case (SSOC) notified the Veteran of the type of evidence necessary to establish a disability rating and effective date. Although this notice was not issued before the rating decisions on appeal, the Veteran has not been prejudiced, as the claim was readjudicated in a March 2009 SSOC. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes VA outpatient treatment records and VA examination reports dated May 24, 2006, October 2008, February 2010, and July 2013. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports, collectively considered, are probative with regard to the nature and severity of the service-connected disability as of and since May 24, 2006. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Pursuant to the Board's June 2013 remand instructions, the RO arranged for a VA examination in July 2013. That examination report reflects that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for proper adjudication of the matter, and explained the rationale for the opinion offered. Hence, the Board concludes that the July 2013 examination was adequate and substantially complied with the June 2013 remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes); see also Dyment v. West, 13 Vet. App. 141 (1999) (a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there is substantial compliance with the Board's remand instructions). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). 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 to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2 (2013); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, 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 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). 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 Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Analysis for Limitation of Motion due to Arthritis of a Right Knee Injury as of May 24, 2006 Pursuant to the January 2013 Memorandum Decision, the Court held the Board is required to provide an adequate statement of reasons or bases as to whether the 2006, 2008, and 2010 VA examinations were adequate and whether the Veteran suffers additional functional loss during flare-ups such that a higher disability rating for his right knee injury is warranted as of May 24, 2006. Pursuant to the rating criteria for the knee, the Veteran's service-connected limitation of motion due to arthritis as a postoperative residual of a right knee injury is rated at 10 percent disabling as of May 24, 2006. See 38 C.F.R. § 4.71a, DC 5003 (2013). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes (5260 and 5261), an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Limitation of flexion of either leg to 45 degrees warrants a 10 percent rating; a 20 percent rating requires that flexion be limited to 30 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension to 10 degrees warrants a 10 percent rating; a 20 percent rating requires that extension be limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2013); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. Id. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2013). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59 (2013). It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. After a full review of the record and consideration of whether the assignment of separate ratings for separate periods of time is warranted, the Board finds that the evidence is against the Veteran's appeal for an increased rating in excess of 10 percent for limitation of motion due to arthritis as a postoperative residual of a right knee injury as of May 24, 2006 for any period. For the entire increased rating period on appeal, this service-connected disability more closely approximates manifestations of pain, full extension to 0 degrees, limited flexion, at worst, to 100 degrees, and no occasional incapacitating exacerbations or additional functional loss during flare-ups. On May 24, 2006, the Veteran underwent a VA examination in connection with the claim on appeal. The examiner noted it was not possible to measure the precise limitation of motion of the knee joint due to pain. In October 2008, the Veteran was afforded an additional VA examination, at which time he complained of daily pain and stiffness. He described his pain as being a level 3 on a scale of 1 to 10, which sometimes flared to a level of 7 during cold weather or when he stayed too long in one position. He used a right knee brace, a cane and a wheelchair. Range of motion was from 0 degrees full extension to 100 degrees limited flexion on repetitive motion testing. He had mild complaints of pain with all motions of the right knee, but no additional limitation of motion of the knee was noted. The Board notes that the May 24, 2006, October 2008, and February 2010 VA examination reports are inadequate with regard to the examiners' absence of a discussion regarding whether the Veteran suffers additional functional loss during flare-ups of the right knee. Nevertheless, the clinical findings documented in these reports are pertinent to the claim and a subsequent VA examination report adequately addresses functional loss during flare-ups. Pursuant to the January 2013 Memorandum Decision, the Veteran was afforded a VA examination in July 2013 to assess the nature and current severity of the right knee, to include any additional functional loss during flare-ups. The Veteran reported current right knee symptoms of arthritic pain. Upon clinical examination, the examiner noted the Veteran did not report that flare-ups impact knee function. The Veteran exhibited full right knee flexion to 140 degrees or greater and full extension to 0 degrees with no painful motion. The Veteran did not show additional limitation in range of motion of the right knee following repetitive-use testing or any functional loss and/or functional impairment of the knee. Additional clinical findings in July 2013 revealed tenderness or pain to palpation for joint line or soft tissues of the right knee and normal muscle strength testing. X-ray diagnostic testing documented degenerative or traumatic arthritis. Following a review of the claims file and clinical findings, as noted above, the July 2013 examiner provided the following conclusions of the Veteran's right knee disability picture: The Veteran reports that he has pain in the right knee which he primarily attributes to arthritis in the knee due to aging. . . . The Veteran only reports pain in the knee with prolonged standing/walking and no impairment was stated with the pain associated with prolonged standing/walking. Based on the knee evaluation: the Veteran does have pain in the right knee that is mild-moderate. There is no additional impairment of the right knee caused by: pain in use, weakened movement, excess fatigability, or incoordination. The existing pain does not significantly limit functional mobility of the right knee during flare-ups or when repeatedly used. The October 2008 and July 2013 examination reports continue to show that the Veteran had limitation of motion of the right knee that would be rated noncompensable under the regular schedular criteria for knee disabilities (DCs 5260 and 5261). As this limitation of motion is shown to be the result of arthritis and neither the Veteran nor the evidence of record indicates occasional incapacitating exacerbations due to the right knee arthritis, a rating in excess of the currently assigned 10 percent disability rating is not warranted under DC 5003. The Board further acknowledges the Veteran's reported history of symptomatology regarding the service-connected disability on appeal and that he is competent to report such symptoms because this requires only personal knowledge as it comes through ones senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). As discussed above, the Veteran reported complaints at the VA examination reports dated May 24, 2006, October 2008, February 2010, and July 2013. The Board finds the Veteran's lay evidence is also credible as he provided consistent reports of symptomatology regarding the service-connected disability. Nevertheless, the Board finds that such lay evidence, alone, is insufficient to support an increased rating in excess of 10 percent for this disability under DC 5003 as of and since May 24, 2006 at any time. That is because his statements as to the symptoms he experiences are outweighed by the fact that such symptomatology has not resulted in impaired functioning. Despite complaining of pain, stiffness, and some weakness, he remains able to use the right knee in a somewhat normal manner and there is no evidence of impaired strength testing. Moreover, the VA examinations showed no decrease in range of motion following repetitive motion testing. As such, there is no basis for a rating in excess of the currently assigned 10 percent rating for additional functional loss. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right knee is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 10 percent rating for arthritis and noncompensable limitation of motion. In this regard, the Board observes that while the Veteran has complained of symptomatology such as pain, stiffness, flare-ups and weakness, VA examiners specifically found that there was no further loss of range of motion with repetitions of use or further loss of functional impairment during flare-ups by the July 2013 VA examiner. Thus, the effect of the right knee symptomatology is already contemplated in the currently assigned 10 percent disability evaluation. The Board observes that the Veteran has not demonstrated limitation of either flexion or extension that would warrant a separate compensable rating. Accordingly, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Therefore, the Board finds that the evidence is against a higher evaluation for the limitation of motion due to arthritis as a postoperative residual of the Veteran's right knee as of and since May 24, 2006. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to the claim as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign a rating higher than the currently assigned 10 percent rating for the service-connected disability limitation of motion due to arthritis as a postoperative residual of a right knee injury at any time as of and since May 24, 2006. The Board notes that in a December 2003 rating decision, the RO granted service connection for residuals of a right knee injury, status post right anterior cruciate repair, under DCs 5257-5260, assigned at 0 percent disabling, effective February 1, 2004. In a September 2004 rating decision, the RO increased the evaluation to 10 percent disabling for the entire rating period and continued that rating in an August 2005 rating decision. The Veteran filed a timely notice of disagreement and timely perfected the appeal to the Board for that issue. Therefore, in July 2011, the Board considered the issue of an increased rating in excess of 10 percent for postoperative residuals of a right knee injury under DC 5257-5260 and denied that issue. This denial included consideration of right knee symptomatology, to include instability and any associated neurologic disabilities, subluxation, tibial and/or fibular impairment, meniscal condition, total right knee replacement, and scar. The Court's Memorandum Decision found no fault with the Board's denial under Diagnostic Code 5257-5260, but, rather, only vacated that portion which assigned a separate 10 percent disability rating under Diagnostic Code 5003 as of May 24, 2006, which is specifically based on limitation of motion. The Board is well aware that the law provides for separate ratings for instability and limitation of motion of the knee, and the Veteran, in fact, has been assigned such separate ratings. However, the July 2011 Board's decision is final for the issue of an increase under DCs 5257-5260, as noted by the Court in the January 2013 Memorandum Decision, and, therefore, such symptomatology pertinent to those codes, specifically, instability, is no longer on appeal before the Board, and discussed no further herein. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2013). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. In this case, the schedular rating criteria contemplate the symptoms and impairment caused by the limitation of motion due to arthritis as a postoperative residual of a right knee injury. The schedular rating criteria specifically provide for ratings based on the Veteran's reported right knee symptomatology, to include pain, stiffness, and weakness. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca. There is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, referral for extra-schedular consideration for the service-connected disability on appeal is not required. As a result, and after fully considering all the lay and medical evidence regarding the service-connected limitation of motion due to arthritis as a postoperative residual of a right knee injury as of May 24, 2006, the Board finds that the evidence is against an increased rating in excess of 10 percent at any time during this appeal period. 38 C.F.R. §§ 4.3, 4.7. ORDER An increased rating in excess of 10 percent as of May 24, 2006 for limitation of motion due to arthritis as a postoperative residual of a right knee injury is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs