Citation Nr: 1334203 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-26 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 10 percent for the residuals of a fracture of the left femur and knee ("left knee disability"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1970 to October 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In that decision, the RO denied the Veteran's request for a rating higher than 10 percent for his previously service-connected left knee disability. Claims to service connect a right knee disability and a low back disability were also denied in that decision, but were later granted by the RO and are no longer under consideration. The Board remanded this claim in March 2011 and July 2013 for further development. In February 2007, the Veteran requested a hearing before a member of the Board. He withdrew his request in a written communication received in July 2007. Therefore, a hearing will not be scheduled in this matter. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2013). FINDINGS OF FACT 1. The Veteran's left knee disability does not show moderate or severe recurrent subluxation or lateral instability. 2. The Veteran has developed degenerative joint disease (DJD) that is manifested by painful motion, limited flexion to 85 degrees, and decreased mobility. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for the Veteran's left knee disability have not been met under Diagnostic Code (DC) 5257, but the criteria for a separate rating of 10 percent have been met under DC 5003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.3, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260 (2013); VAOPGCPREC 9-98. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (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 Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. Veterans Claim Assistance Act (VCAA) The Veterans Claims Assistance Act (VCAA) provides that VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 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 what is needed to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). 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 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The record reflects that the RO provided the Veteran with the notice required under the VCAA by letter mailed July 5, 2006, prior to the September 2006 rating decision. The VCAA letter indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran has submitted medical records and attended VA examinations, where he reported his current symptoms. His actions are indicative of his actual knowledge of what is needed to substantiate his claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Accordingly, the Board concludes that the duty to notify has been satisfied. The VCAA further provides that VA has a duty to assist the claimant in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty includes assisting in obtaining service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The Board concludes the duty to assist has been satisfied. The Veteran's STRs and post-service treatment records have been obtained and associated with the claim folder. In July 2006, the Veteran reported that he had received treatment from the Nashville VA Medical Center (VAMC); however, searches at that facility revealed no records. In July 2006, April 2007, and July 2013, he was informed of this and asked to provide the dates of said treatment, but to date, no response has been received. The Veteran has been afforded two VA examinations. The Board finds that these examinations, taken in aggregate, are adequate for rating purposes. Finally, the Board finds that there has been substantial compliance with its March 2011 and July 2013 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); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board directed the RO to attempt to obtain VAMC treatment reports and schedule VA examinations. The RO has completed this necessary development. Accordingly, the Board will address the claim on the merits. Increased rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2013). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2013). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). 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). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, that is, the rating may be "staged." See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating musculoskeletal system disabilities that are based on limitation of motion, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2013). Pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2013). Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2013). Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's left knee disability is currently rated as 10 percent disabling under DC 5257, which applies to other impairments of the knee, with recurrent subluxation or lateral instability. Under DC 5257, a 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for moderate impairment, and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71a (2013). The Board notes the Veteran's 10 percent rating under DC 5257 has been in effect since October 1974. Because he this rating has been in effect for over 20 years, it will be preserved and not subject to reduction, except in the case of fraud. 38 C.F.R. § 3.951 (2013). A June 2007 private medical record shows the Veteran was diagnosed with degenerative joint disease in the medial aspect of the left knee. At that time, the Veteran had full range of motion of the left knee and no instability. Subpatellar crepitus was noted, as well as tenderness to palpation. At the July 2011 VA examination, the Veteran was diagnosed with left knee degenerative joint disease and residuals of left femur fracture. The Veteran reported that he could stand for more than one, but less than three, hours; and that he could walk more than a fourth of a mile, but less than a one mile. He was noted to be employed full-time as a painter, and that his left knee disability would have significant effects on his ability to work, in the form of decreased mobility and pain. It would also have mild to moderate effects on the usual activities of daily living, including completing chores and exercising. He had a normal gait. He showed pain, stiffness, and decreased speed of joint motion. He did not show instability, subluxation, or weakness. He was able to flex to 105 degrees, with extension normal. There was objective evidence of pain after three repetitions, but no additional limitation. There was no instability or subluxation of the knee. At the July 2013 VA examination, the Veteran was diagnosed with bilateral degenerative joint disease and status post left femur fracture. He reported that he experiences flare ups due to the weather, or when he has had to walk or stand for a prolonged period of time, especially on hard surfaces. He had an antalgic gait. He was able to flex to 85 degrees, with pain starting at 60 degrees. He was able to reach 85 degrees after three repetitions. Extension was normal. He had tenderness and pain on palpation. The VA examiner explained he would have additional functional loss of less movement during a flare up due to weakness and pain. Fatigue and incoordination would further reduce function; the examiner opined this could have a significant impact on his ability to work. He was not noted to be unemployed. Strength of the left leg muscles was reduced to 4 out of 5. He did not show instability, subluxation, or dislocation. He did not have any trouble with his tibia, fibula, or meniscus. He was not noted to have a scar. Based on the foregoing evidence, a higher rating under DC 5257 is not warranted. The evidence does not show the Veteran has moderate or severe instability or subluxation, which is required for the next higher disability rating under this code. See 38 C.F.R. § 4.71a (2013), DC 5257. Both private and VA examinations revealed no subluxation or instability of the left knee. The Veteran has a decreased range of motion of his left knee, therefore the DCs pertaining to limited motion have also been considered. 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 limited to 45 degrees; a 20 percent disability rating is assigned when limited to 30 degrees; and, a 30 percent disability rating is assigned when limited to 15 degrees. See 38 C.F.R. § 4.71a (2013). Under DC 5261, a 0 percent disability rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent disability rating is assigned when limited to 10 degrees; a 20 percent disability rating is assigned when limited to 15 degrees; a 30 percent disability rating is assigned when limited to 20 degrees; a 40 percent disability rating is assigned when limited to 30 degrees; and a 50 percent disability rating is assigned when limited to 45 degrees. See id. Normal range of motion of the knee is defined as extension to 0 degrees and flexion to 140 degrees. See id., Plate II (2013). The Veteran has been shown to have normal extension. His flexion is limited, but not to a compensable degree. At the July 2013 VA examination, he was able to flex to 85 degrees, but flexion became painful at 60 degrees. The Veteran has not been shown to have ankylosis, or any symptoms related to his semilunar cartilage or tibia and fibula, or genu recurvatum, thus application of DCs 5256, 5258, 5259, 5262, or 5263 is not warranted. The Veteran was diagnosed with degenerative joint during the pendency of this claim, in June 2007. Degenerative joint disease is rated under DC 5003. See 38 C.F.R. § 4.71a (2013). Under DC 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate DCs 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 DCs, 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 DC 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 DC 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 (2013). In this regard, the Board notes that with any form of arthritis, painful motion is an important factor of disability. See id. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. As noted above, joints that are actually painful, unstable, or malaligned should be entitled to at least the minimum compensable rating for the joint, therefore 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 (2012); 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). The Board notes that in Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011), the Court clarified its holding in Lichtenfels, explaining that the evaluation of painful motion as limited motion only applies to the evaluation of arthritis under DC 5003, as mandated by the express language in that provision, and only when limitation of motion is noncompensable under the applicable diagnostic code. The Court further explained that although painful motion is entitled to a minimum 10 percent rating under Lichtenfels and DC 5003, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, 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. Separate ratings may be assigned under DCs 5257 and 5003 for arthritis of the knee with limited motion, provided that limitation of motion at least meets the criteria for a 0 percent rating. See VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 23-97 (July 1, 1997). The Board finds that the assignment of a separate rating of 10 percent is warranted under DC 5003-5260, based on the Veteran's degenerative joint disease and limited flexion of the knee with pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59. A rating in excess of 10 percent for limited flexion is not warranted as the Veteran has flexion limited only to 85 degrees, which does not even meet the criteria for a 0 percent rating under DC 5260. The Board has also considered whether a separate rating is warranted under DC 5261 for limited extension of the knee. However, the Veteran has repeatedly exhibited normal/full flexion to 0 degrees. And to assign two, separate ratings based upon painful motion would be pyramiding. See 38 C.F.R. § 4.14. Therefore, a separate rating under DC 5261 is not warranted. Extraschedular consideration The Board has considered whether the claim should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2013). Because the ratings under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual claimant's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration, id., as the Board is precluded by regulation from assigning extraschedular ratings in the first instance. 38 C.F.R. § 3.321(b)(1) (2013). The governing norm in these cases is a finding that the disability 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. Id. 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, 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 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 the third step requires the case to be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Services to determine whether the disability requires the assignment of an extraschedular rating. Id. The Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran's reported symptoms (i.e., pain, crepitus, and limited motion) are contemplated by the rating criteria, as discussed above. See also 38 C.F.R. §§ 4.40, 4.45, 4.59. Thus, there are no symptoms left uncompensated or unaccounted for by the assignment of a schedular rating. The evidence does not demonstrate that the Veteran's disability presents "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) (2012). The fact that circumstances specific to a particular claimant may cause the effects of a service-connected disability to be more profound in that claimant's case does not ordinarily provide a basis for extraschedular consideration. See VAOPGCPREC 6-96. Rather, the impairment must be one that is so unusual as to be unanticipated by the rating criteria. See id. The Board finds that the available schedular evaluations are adequate to rate this disability, and therefore referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b) (2013); Thun v. Peake, 22 Vet. App. 111, 115 (2008). Rice consideration In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the Court held that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered "part and parcel" of the claim for benefits for the underlying disability. In the instant case, the Veteran has not asserted that his left knee disability causes him to be unemployable, and instead shows him to have full-time employment as a painter. Therefore, the Board finds that a claim for TDIU is not raised by the Veteran or reasonably raised by the record and, as such, need not be further addressed. ORDER Entitlement to a disability rating in excess of 10 percent under diagnostic code 5257 for the Veteran's left knee disability is denied. A separate disability rating of 10 percent, but not higher, under diagnostic code 5003-5260 for the Veteran's left knee degenerative joint disease is granted, subject to the statutes and regulations governing the payment of VA compensation. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs