Citation Nr: 1332793	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  08-23 062A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a rating greater than 10 percent for degenerative joint disease of the left knee with menisci tear.

2. Entitlement to a rating greater than 10 percent for instability of the left knee associated with degenerative joint disease with menisci tear.

3. Entitlement to an initial rating greater than 10 percent for lumbar spine degeneration. 

4. Entitlement to an initial compensable rating for residuals of traumatic brain injury. 

5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).




REPRESENTATION

Appellant represented by:	Charles Romo, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Rutkin, J.M.


INTRODUCTION

The Veteran served on active duty from February 17, 2004 to December 3, 2004. Prior to that time, he had service in Reserve components with 5 years, 6 months, and 26 days of active duty according to his DD-214.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In May 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO.  He also provided testimony at a Board hearing in March 2011 before the undersigned.  Transcripts of both hearings are in the claims file. 

The Board remanded these claims in February 2012 for further development.  They now return for appellate review. 

The issues of entitlement to an initial rating greater than 10 percent for lumbar spine degeneration, an initial compensable rating for residuals of a traumatic brain injury, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1. The Veteran's left knee instability with menisci tear is manifested by moderate impairment, including giving way of the knee, necessitating use of a knee brace. 

2. The Veteran has a history of partial surgical removal of the meniscus of the left knee, with resulting symptoms, including pain and effusion. 

3. The Veteran's degenerative joint disease of the left knee is manifested by flexion limited to 100 degrees or higher, with pain beginning at the point of limitation, and normal extension. 


CONCLUSIONS OF LAW

1. The criteria for a rating of 20 percent, but no higher, for instability of the left knee have been satisfied.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, Diagnostic Code (DC) 5257 (2013).

2. The criteria for a separate rating of 10 percent, but no higher, for symptomatic partial removal of the meniscus have been satisfied.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.3, and 4.71a, DC 5259 (2013).

3. The criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met during the pendency of this claim.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, and 4.71a, Diagnostic Codes (DC's) 5003, 5010, 5260, 5261 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence of record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below 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) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).  

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  Under this standard, a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 

I. Procedural Due Process

A. Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013).  

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, a delay in timing of the notice is "cured," and therefore harmless, when a fully compliant VCAA notification letter is followed by readjudication of the claim (such as through issuing a statement of the case or supplemental statement of the case) after the claimant has had an opportunity to submit additional evidence.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  

In order to satisfy the first notice element in an increased rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vazquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vazquez-Flores I), overruled in part sub. nom. Vazquez-Flores/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vazquez-Flores II).  Further, the claimant must be notified that a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment.  Id.  Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation.  Id.  Except when VCAA notice as to how to substantiate an increased-rating claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided.  See Vazquez-Flores, 24 Vet. App. at 106-07.  

Here, prior to the initial rating decision in this matter, a May 2007 letter satisfied the above notice requirements for substantiating an increased rating claim, and also informed the Veteran of his and VA's respective responsibilities for obtaining relevant evidence on his behalf.  Accordingly, the duty to notify is satisfied.  Id.

VA's duty to assist under the VCAA includes helping the claimant to obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  

Here, the Veteran's service treatment records, VA treatment records and examination reports, and Social Security Administration (SSA) records are in the claims file.  Private treatment records identified by the Veteran have also been associated with the file.  He has not identified any other relevant records or evidence that has not been obtained.  Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied.  See 38 C.F.R. § 3.159(c).  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991).  Where the evidence does not reflect the current state of the veteran's disability, a new VA examination must be conducted.   See 38 C.F.R. § 3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Here, a VA knee examination was performed most recently in November 2012.  The examination report is adequate for rating purposes, as the examiner reviewed the claims file, examined the Veteran, and described the Veteran's disability in sufficient detail to enable the Board to make an informed decision on this claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).  VA examinations of the Veteran's left knee were also performed in June 2009 and May 2007.  

There is no evidence indicating that there has been a material change in the severity of the Veteran's left knee disorders since he was last examined by VA.  See 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See VAOPGCPREC 11-95 (April 7, 1995).  Accordingly, the duty to provide a VA examination is satisfied.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.   

In sum, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial") (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006)).  Any defect in the notice or assistance provided did not affect the outcome of the claim or compromise the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that due account must be taken of the rule of prejudicial error).  Accordingly, the Board may proceed with appellate review.  



B. Compliance with the Board's Prior Remand Directives 

The Board remanded the increased rating claims for the Veteran's left knee disorders in February 2012 to provide a new VA examination to assess their current level of severity.  An adequate VA knee examination responsive to the Board's remand directives was performed in November 2012, as discussed above, followed by readjudication of the claims in an April 2013 supplemental statement of the case (SSOC).  Thus, there has been substantial compliance with the Board's remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall).

C. Compliance with Hearing Officer's Duties 

The Veteran testified at a May 2009 hearing before a DRO, and at a March 2011 Board hearing before the undersigned.  Under 38 C.F.R. § 3.103(c)(2) (2013), the hearing officer must explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2).  First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim).  Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.  

Importantly, the Court observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c).  See id. at 498.  Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless.  Id.  Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit.  

Here, the outstanding issue is whether the Veteran's service-connected left knee disorders meet the criteria for higher ratings.  At both hearings, the Veteran presented pertinent testimony regarding the symptoms and functional impairment associated with his left knee disorders, facilitated by questioning from his representative.  Moreover, any deficiencies in the hearings under section 3.103(c)(2) were not prejudicial.  Specifically, VA has otherwise developed this claim, including obtaining relevant records on the Veteran's behalf and providing VA examinations-including in June 2009 and November 2012-which address the outstanding issue of whether the Veteran's left knee disorders have met the criteria for higher ratings during the pendency of this claim.  The Veteran did not raise any new issues pertaining to his claim at the hearings, and there is no indication of any outstanding evidence that may have been overlooked.  See id. at 499.  Indeed, the record was held open for 60 days after the Board hearing to afford the Veteran an opportunity to submit more records, and additional records have been submitted and associated with the file. 

Thus, given the development undertaken by VA with respect to this claim, in conjunction with the Veteran's hearing testimony, the "clarity and completeness of the hearing record [is] intact" and the purpose of section 3.103(c)(2) to develop the record has been fulfilled.  Id. at 498-99.  Accordingly, the Veteran's right to a hearing before a DRO and before the Board has been satisfied, and no prejudicial error exists with regard to the hearing officer's duties under section 3.103(c)(2).  See id.; see also Sanders, 556 U.S. at 407, 410.

II. Analysis

The Veteran contends that he is entitled to a rating greater than 10 percent for left knee instability, and a rating greater than 10 percent for left knee degenerative joint disease.  For the reasons that follow, the Board concludes that a higher rating of 20 percent for moderate left knee instability is warranted, as well as a separate 10 percent rating for residuals of the Veteran's left knee meniscectomy (removal of semilunar cartilage).  However, a higher rating is not warranted for degenerative joint disease of the left knee. 

VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2013).  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7 (2013).  Otherwise, the lower rating will be assigned.  Id.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3.  The schedule recognizes that disability from distinct injuries or diseases may overlap.  See 38 C.F.R. § 4.14 (2013).  However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided.  Id.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period on appeal in accordance with such variations, if supported by the evidence of record.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

Separate 10 percent ratings have been assigned the Veteran's service-connected left knee degenerative joint disease and left knee instability with menisci tear.  See VAOPGCPREC 9-98 (August 14, 1998) and VAOPGCPREC 23-97 (July 1, 1997) (both holding that separate ratings may be assigned for instability of the knee and arthritis of the knee with limited motion).  The Board will address each in turn.

A. Instability of the Left Knee

The Veteran's instability of the left knee has been evaluated under DC 5257, which pertains to recurrent subluxation or lateral instability of the knee.  See 38 C.F.R. § 4.71a.  Under DC 5257, a 10 percent rating is assigned for slight impairment of the knee, a 20 percent rating is assigned for moderate impairment of the knee, and a 30 percent rating is assigned for severe impairment of the knee.  See id.  

By way of background, the Veteran twice injured his left knee during active service, with the second injury occurring during a mortar attack in Iraq.  He had increasing symptoms and underwent a partial medial meniscectomy and chrondroplasty of the trochlear groove in August 2006 at a VA facility.  He was diagnosed at the time with a torn medial meniscus, and grade 3 chrondromalcia at the medial femoral condyle and the patella. 

A May 2007 VA examination report reflects that the Veteran had swelling, pain, giving out, and popping of the left knee, with difficulty kneeling, squatting, and climbing.  He did not experience locking of the knee.  He wore a knee brace and had an antalgic gait.  He used a cane for ambulation.  He was able to stand for 5 to 10 minutes, assisted by leaning on a cane.  He was able to walk 50 to 100 feet.  He reported episodes of dislocation or subluxation several times a week.  He had severe flare-ups every two to three weeks, during which he had to stay off of his knee and apply ice.  The flare-ups were usually precipitated by walking up stairs, and lasted for a few hours after applying ice.  On examination, flexion of the left knee was to 120 degrees, with pain beginning at that point, and extension to 0 degrees, with no pain.  There was no additional limitation of flexion or extension with repeated use.  The examiner was unable to determine additional limitations of range of motion during a flare-up without resorting to speculation as the Veteran was not experiencing a flare-up at the time of the examination.  Crepitation, grinding, and effusion were also observed, and the Veteran's meniscus was noted to be absent due to previous surgery.  An x-ray study showed early osteoarthritis.  The examiner diagnosed a medial collateral ligament tear with degeneration of the medial and lateral menisci status post arthroscopy of the left knee with osteoarthritis. 

In December 2008, a Medical Board examined the Veteran to determine his fitness for continued service in the Navy Reserves.  The Veteran reported at this time that his left knee pain was a 6-7 out of 10 in severity, and stated that a left knee brace significantly improved the pain, bringing it down from an 8 to a 6 in terms of severity.  He also reported pain when lifting anything over twenty pounds.  He further stated that his left knee was unstable with pivotal movements.  He denied locking or catching, but endorsed popping and recurrent effusions.  He was "unable to carry out a reciprocal gait" with stair climbing.  It was noted that he required a cane for ambulation and had difficulty walking for prolonged periods.  He was unable to run or squat.  On examination, range of motion of the left knee was from 0 to 125 degrees.  He had pain with resisted flexion.  The left knee exhibited a moderate effusion.  The Veteran had significant medial and patellar facet tenderness to palpation.  The knee was stable on testing.  The Medical Board noted that the Veteran would likely require continued bracing of the knee and replacement surgery later in life.  The Medical Board referred the Veteran to a Physical Evaluation Board, which in a May 2009 report found the Veteran unfit for further service based, in pertinent part, on his left knee disorders diagnosed as chondromalacia patellofemoral syndrome. 

At the May 2009 DRO hearing, the Veteran stated that his left knee pops and gives out.  He stated that the frequency of these symptoms depended on his activities.  The more he used the knee, the more frequent the symptoms occurred.  He further testified that he was unable to squat.  The Veteran also reported muscle spasms of the knee, which occurred at night if he had been on his feet for an extended period of time during the day.  

At a June 2009 VA examination, the Veteran stated that he was not working due to limitations imposed by his left knee disorder, as well as by a right knee disorder and low back disorder.  He was able to walk with a cane for about 50 feet, but could not stand for prolonged periods of time.  His left knee pain was an 8 in a scale of 1 to 10, per the Veteran's report.  He took pain medication, including a prescription narcotic, which provided some relief.  He had a history of swelling and popping, but denied locking of the knee.  He denied flare-ups over the past year.  On range of motion testing, extension was to 0 degrees and flexion to 120 degrees, with no change after repetitive motion.  Pain was noted at the extreme of flexion.  The knee was stable on examination, which included physical testing.  There was tenderness to palpation of the patella, which recreated the pain described by the Veteran.  The examiner noted that private x-rays dated in May 2009 showed mild joint space narrowing of the medial compartment.  The examiner provided a diagnosis of residuals of a medial collateral ligament tear of the left knee with mild degenerative joint disease of the medial compartment. 

A June 2009 private treatment record reflects that the Veteran fell when his left knee "caught," resulting in an injury to the right hand and a skinned right forearm. 

Private treatment records reflect that in April 2010 the Veteran underwent a series of weekly left knee injections with a lubricant (viscosupplementation). 

At the March 2011 Board hearing, the Veteran reported falling on a number of occasions due to his left knee giving out, and stated that had been prescribed a knee brace due to the falling.  

A July 2012 VA treatment record shows that range of motion of the left knee was from 0 to 125 degrees.  On physical examination, there was no laxity or instability of the knee.

The Veteran underwent a series of injections of the left knee with viscosupplementation (Synvisc) in November 2012 and December 2012 at VA. 

At the November 2012 VA examination, the Veteran reported flare-ups of left knee symptoms with cold damp weather.  On examination, flexion of the left knee was to 100 degrees, with objective evidence of painful motion at this point.  Extension of the left knee was to 0 degrees with no objective evidence of painful motion.  After three repetitions, there was no additional limitation of range of motion.  With regard to functional impairment, the examiner noted the following contributing factors: less movement than normal, pain on movement, instability of station, and disturbance of locomotion.  Pain was also observed on palpation of the knee.  Muscle strength testing showed normal strength.  Stability testing showed normal anterior, posterior, and medial-lateral stability.  There was no evidence of recurrent patellar subluxation or dislocation.  The examiner further noted a history of meniscus (semilunar cartilage) condition with a meniscal tear and frequent episodes of joint pain.  The examination report again shows that the Veteran used a left knee brace on a regular basis, and also used a cane on a constant basis.  X-ray studies showed traumatic arthritis.  They were negative for patellar subluxation.  The examiner found that the left knee disorder should not preclude sedentary employment involving limited walking and standing.  

Based on the evidence reviewed above, the Board finds that the Veteran's left knee instability most closely approximates the criteria for a 20 percent rating based on moderate impairment of the knee.  See 38 C.F.R. § 4.71a, DC 5257.  In this regard, the Veteran's need for a left knee brace and use of a cane, his credible reports of giving way of the knee several times a week, which has resulted in falling, and his limitations with regard standing and walking, in addition to his history of left knee surgery for a meniscal tear, supports a finding that his left knee instability is more than slight in nature.  

The preponderance of the evidence weighs against assignment of a 30 percent rating for severe impairment under DC 5257, as there have been no clinical findings of instability or subluxation of the knee on examination during the pendency of this claim.  The December 2008 Medical Board examination, June 2009 VA examination, July 2012 VA treatment record, and November 2012 VA examination report all show that the Veteran's left knee stability was found to be normal on testing.  Because the objective clinical findings of record throughout the pendency of this claim show no instability or recurrent subluxation of the left knee, but on the contrary show normal stability, the Veteran's left knee instability more nearly approximates the criteria for a 20 percent rating due to moderate instability based on his reported symptoms.  See 38 C.F.R. §§ 4.7, 4.71a, DC 5257.  

A separate 10 percent rating is also warranted under DC 5259 for symptomatic removal of the semilunar cartilage (meniscus).  The Veteran underwent a partial meniscectomy in August 2006, and the evidence shows ongoing symptoms of considerable pain described as an 8 in a scale of 1 to 10 in severity, as well as recurrent effusions and popping.  The fact that the Veteran underwent a series of viscosupplementation injections in 2010 and 2012 further supports the credibility of the Veteran's statements regarding his symptoms.  As these symptoms do not necessarily overlap with instability of the knee or limitation of motion, a separate rating under DC 5259 does not violate the rule against pyramiding.  See 38 C.F.R. § 4.14.

The Board has also considered whether a separate rating is warranted under DC 5258, which provides that a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint.  See 38 C.F.R. § 4.71a.  However, there is no evidence during the pendency of this claim that the Veteran has had dislocated semilunar cartilage or locking of the knee, which is required for a 20 percent rating under DC 5258.  Thus, the criteria for a 20 percent rating under DC 5258 are not satisfied.  See id.




B. Degenerative Joint Disease of the Left Knee

The Veteran's left knee arthritis has been evaluated as traumatic arthritis under DC 5010.  See 38 C.F.R. § 4.71a.  Diagnostic Code 5010 provides that traumatic arthritis is to be rated as degenerative arthritis under DC 5003.  Id.  Under DC 5003, 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.  See id.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion.  Id.  In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  If there are no incapacitating exacerbations, a 10 percent rating is assigned.  Id. 

In application of Diagnostic Code 5003, the Court has held that "painful motion of a major joint . . . caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion."  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59.  

Moreover, with any form of arthritis, painful motion is an important factor of disability.  38 C.F.R. § 4.59.  The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that section 4.59 applies to all forms of painful motion of joints, and not just to arthritis).  

When evaluating disorders of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  Under 38 C.F.R. § 4.45, consideration must also be given to weakened movement, premature or excess fatigability and incoordination.  See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria set forth in sections 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint).  When determining whether a higher rating is warranted for pain, the Court held in Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) that the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating.  See id. at 43. 

The diagnostic codes pertaining to range of motion of the knee are DC 5260 (flexion of the knee) and DC 5261 (extension of the knee).  See 38 C.F.R. § 4.71(a).  Under DC 5260, a 0 percent disability rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent disability rating is assigned when flexion is limited to 45 degrees; a 20 percent disability rating is assigned when flexion is limited to 30 degrees; and a 30 percent disability rating is assigned when flexion is limited to 15 degrees.  See id.

Under DC 5261, a 0 percent disability rating is assigned for extension limited to 5 degrees; a 10 percent disability rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees.  See id.  

Importantly, separate ratings may be assigned for limitation of flexion and limitation of extension for disability of the same joint.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).  

Normal range of motion of the knee is defined as extension to 0 degrees and flexion to 140 degrees.  See id., Plate II.  

The evidence shows that the Veteran's range of motion of the left knee has not met the criteria for even a 0 percent rating throughout the pendency of this claim.  Rather, even after repetitive testing, flexion of the left knee has always been to at least 100 degrees, and usually to 125 degrees, with pain only beginning at this point, and extension of the knee has consistently been normal.  Thus, compensable ratings are not warranted under DC's 5260 and 5261.  See 38 C.F.R. § 4.71a.  

The 10 percent rating assigned under DC's 5010 and 5003 compensates the Veteran's traumatic arthritis of the left knee with painful and limited motion.  See id., DC 5003; see also 38 C.F.R. § 4.59.  As there is no X-ray evidence of involvement of 2 or more major joints of the left knee, or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating under DC 5003 is not warranted.   See 38 C.F.R. § 4.71a, DC 5003. 

There is also no evidence of pain, weakened movement, premature or excess fatigability or incoordination causing disability of the left knee beyond that reflected on range of motion measurements.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07.  The Veteran's ranges of motion have remained the same after repetitive testing throughout this claim.  Moreover, pain and weakness of the left knee have already been compensated under DC's 5257 and 5259 for instability and symptomatic partial removal of the meniscus.  The Veteran has reported flare-ups with changes in the weather, and stated at the May 2007 VA examination that he had flare-ups of left knee symptoms occurring every two to three weeks which lasted several hours at a time.  However, such flare-ups alone do not show disability of the left knee greater than that compensated by the ratings already assigned, given the highly intermittent and short-lived nature of the flare-ups.  The evidence does not otherwise show left knee impairment more severe than what is reflected in several VA examination reports, the December 2008 Medical Board examination report, and the treatment records.  Accordingly, a higher rating is not warranted under sections 4.40 and 4.45 of the regulations.

In summary, the Veteran's traumatic arthritis of the left knee most closely approximates the criteria for a 10 percent rating under DC's 5003 and 5010.  Thus, a higher rating is not warranted.  See 38 C.F.R. § 4.7.  

There is no evidence suggesting that the Veteran has had ankylosis of the knee, impairment of the tibia or fibula, or genu recurvatum at any point during the pendency of this claim.  Thus, DC's 5256, 5262, and 5263, which pertain to these conditions, respectively, do not apply.  See 38 C.F.R. § 4.71a. 

As shown in the above discussion, while the Veteran's left knee disorders may have fluctuated in severity to some extent, there is no evidence showing that they have met the criteria for ratings higher than those already assigned at any point during the pendency of this claim.  Thus, staged ratings are not appropriate for time frame on appeal.  See Hart, 21 Vet. App. at 509-10.

The issue of whether a total disability rating based on individual unemployability (TDIU) is warranted is addressed below in the remand portion of this decision.  See 38 C.F.R. §§ 3.340, 4.16 (2013); Rice v. Shinseki, 22 Vet. App. 447, 455 (2009) (holding, in pertinent part, that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel of that claim for an increased rating is the issue of whether a total rating based on individual unemployability as a result of that disability is warranted).  

The Board has considered whether the Veteran's claim should be referred for an extraschedular rating.  See 38 C.F.R. § 3.321(b) (2013); Thun v. Peake, 22 Vet. App. 111, 114 (2008).  Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry.  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In this regard, the Board must compare 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.  See id.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  

Referral for extraschedular consideration is not warranted.  A comparison of the Veteran's service-connected left knee disorders and the rating criteria does not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b).  The Veteran's impairment of the meniscus and degenerative arthritis are manifested by symptoms and functional impairment expressly addressed by the rating criteria, including pain, limited motion, instability, giving way, crepitation, effusion, and popping.  These symptoms and functional limitations are contemplated by, and indeed directly addressed by sections 4.40, 4.45, and 4.59 of the regulations, as well as by DC's 5003, 5010, 5257, 5259, 5260, and 5661, which provide for compensation for arthritis, removal of the meniscus, painful and limited motion, and instability.  See 38 C.F.R. § 4.71a.  The Veteran also reported spasming of the left knee at the May 2009 DRO hearing, which he stated occurred at night if he had used his knee more during the day.  However, there is no mention of such spasming in the VA examination reports or the treatment records, either by history provided by the Veteran or in the recorded clinical findings.  Thus, although spasming of the knee is not mentioned in the rating criteria, there is no evidence that this reported symptom has played a meaningful role in his service-connected left knee disability picture.  Thus, it does not by itself warrant referral for extraschedular consideration.  Therefore, the Board finds that the Veteran does not have any symptoms or functional limitations not accounted for in the ratings assigned under the schedular criteria.  See Thun, 22 Vet. App. at 115.  

There is no evidence suggesting that the Veteran's specific functional limitations, including with regard to walking, standing, and bending, or his need for a brace and cane, are exceptional or unusual given the symptoms and functional impairment already compensated under the rating criteria.  Thus, such functional impairment is within the purview of the rating schedule even if not specifically mentioned in the applicable diagnostic codes.  See 38 C.F.R. § 4.1 (providing that the degrees of disability specified in the General Rating Criteria are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability); see also 38 C.F.R. § 4.21 (2013) (providing that "[c]oordination of rating with impairment of function will . . . be expected in all instances").  As noted in Thun, 22 Vet. App. at 114, the rating criteria are averages and need not account for each individual circumstance in order to be adequate for evaluation purposes.  Therefore, as the evidence does not show that the Veteran's left knee disorders are "exceptional" or "unusual" when compared with the rating criteria, the available schedular evaluations are adequate for rating purposes.

Accordingly, the first step of the inquiry is not satisfied.  See id.  In the absence of this threshold finding, there is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See id. at 118-19 (holding that the Board's "threshold" finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  Indeed, in the absence of an exceptional or unusual disability picture under the first Thun factor, marked interference with employment is not sufficient by itself to warrant extraschedular referral, as the rating schedule "clearly recognizes that the rated disabilities interfere with employment."  See VAOPGCPREC 6-96 (August 16, 1996).  Consequently, referral for extraschedular consideration is not warranted.  Id.

In summary, a higher rating of 20 percent is warranted under DC 5257 throughout the pendency of this claim for moderate instability of the left knee.  A separate rating of 10 percent under DC 5259 for symptomatic removal of the meniscus is also warranted for the entire period on appeal.  However, the preponderance of the evidence weighs against assignment of a rating in excess of 10 percent for traumatic arthritis of the left knee.  Accordingly, the benefit-of-the-doubt rule does not apply, and a rating greater than 10 percent for left knee arthritis must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. 


ORDER

Entitlement to a rating of 20 percent, but no higher, for instability of the left knee associated with degenerative joint disease and menisci tear is granted, subject to the laws and regulations governing payment of monetary benefits.  

Entitlement to a separate rating of 10 percent for symptomatic removal of the meniscus is granted, subject to the laws and regulations governing payment of monetary benefits.  

Entitlement to a rating greater than 10 percent for degenerative joint disease of the left knee with menisci tear is denied.



REMAND

While the Board regrets the further delay, the issue of entitlement to TDIU must be remanded for further development to ensure that it is afforded every due consideration.  The appeal of the initial evaluations assigned the Veteran's lumbar spine degeneration and residuals of a traumatic brain injury (TBI) must also be remanded for issuance of a Statement of the Case (SOC).  

With regard to the issue of entitlement to TDIU, a November 2012 VA examination addresses the impact of the Veteran's service-connected left knee disorders on his ability to work, but does not include an opinion as to whether the Veteran is unemployable due to any other service-connected disability or due to the combined effects of his service-connected disabilities.  Notably, service connection has also been established for posttraumatic stress disorder (PTSD), and an October 2007 Social Security Administration (SSA) reflects a finding of disability with a primary diagnosis of PTSD and secondary diagnosis of osteoarthritis.  Moreover, entitlement to TDIU may depend, in part, on resolution of the pending appeal of the initial ratings assigned the Veteran's service-connected lumbar spine degeneration and residuals of a TBI.  See Harris v. Derwinski, 1 Vet. App 180, 183 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of the second issue).  Accordingly, a new VA examination and opinion are warranted to assess the impact of the Veteran's other service-connected disabilities on his ability to engage in substantially gainful activity.  See 38 C.F.R. §§ 3.340, 4.15 (2013).  

Pursuant to the Board's February 2012 decision, the RO effectuated grants of service connection for lumbar spine degeneration and TBI residuals in an April 2012 rating decision.  The RO assigned an initial 10 percent rating for the lumbar spine disorder and an initial noncompensable evaluation for the TBI residuals.  The Veteran submitted a timely notice of disagreement (NOD) with this decision in November 2012, contesting the initial evaluations of these disorders.  However, the RO has not yet issued an SOC that addresses these issues.  See 38 C.F.R. §§ 19.26(d), 19.29, 19.30 (2013) (setting forth requirements for issuing an SOC).  Accordingly, the appeal of the initial ratings assigned the Veteran's service-connected lumbar spine degeneration and TBI residuals must be remanded for the purpose of issuing an SOC.  See id; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  However, after issuance of the SOC, the Veteran must perfect the appeal by filing a timely substantive appeal in order for these issues to be certified to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2013) (setting for requirements for perfecting the appeal); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

The RO should also take this opportunity to obtain any outstanding VA treatment records from the VA Medical Center (VAMC) in Gainesville, Florida generated since June 2013 and associate them with the Virtual File. 

Accordingly, the case is REMANDED for the following actions:

1. Obtain any outstanding VA treatment records from the Gainesville VAMC generated since June 2013 and associate them with the Virtual File. 

2. Provide the Veteran and his representative with a SOC addressing the initial evaluations of his service-connected lumbar spine degeneration and residuals of a TBI.  He must also be informed of the requirement to submit a timely and adequate substantive appeal in order to perfect an appeal of either or both issues to the Board.  If a timely substantive appeal is not filed, these issues should not be certified to the Board.

3. Schedule the Veteran for VA examinations and opinions to address the impact of his service-connected disabilities on his ability to work.  The entire claims file, including a copy of this REMAND, must be made available to the examiners for review prior to the examinations.  The examiners must indicate in the examination report that the claims file has been reviewed. 

The examiners should record all pertinent clinical findings and perform any necessary tests and studies.  

After examining the Veteran and reviewing the claims file, the examiner should render an opinion as to whether the Veteran's service-connected disabilities, by themselves or in combination, are sufficiently disabling as to prevent him from obtaining or maintaining substantially gainful employment, without regard to his advancing age and disabilities that are not service connected.  

The examiner must take into account the Veteran's prior work history, level of education, and skills training in determining whether he would be able to engage in more than marginal employment within the restrictions imposed by his service-connected disabilities. 

A complete explanation must be provided in support of the opinion.  

4. Then, review the claims file and ensure that all requested development actions have been completed in full.  If the VA examination report does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action.

5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the issue of entitlement to TDIU on the merits.  If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran 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).

No action is required of the Veteran until further notice.  His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated.  He is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655 (2013).  

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. 2013).



______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs