Citation Nr: 1334304 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-25 195 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUES 1. Entitlement to increased initial rating for the service-connected right knee disability. 2. Entitlement to a total disability rating based upon individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1956 to August 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2010 by the RO that granted service connection and assigned a 10 percent rating for degenerative joint disease of the right knee, status post right lateral meniscectomy, effective on March 11, 2010. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU rating is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected right knee disability is shown to be manifested by significant degenerative joint disease with pain and flexion limited to 80 degrees, a disability picture with a functional loss due to pain that more closely approximates that of extension limited to 10 degrees, and the residuals of removal of a semilunar cartilage without subluxation or instability, malunion or nonunion of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for the assignment of an increased rating in excess of 10 percent for the service-connected right knee disability on the basis of limitation of flexion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5260 (2013). 2. The criteria for the assignment of a separate 10 percent rating, but no higher for the service-connected right knee disability on the basis of limitation of extension have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5261 (2013). 3. The criteria for the assignment of a rating of 10 percent, but no higher for the service-connected right knee disability on the basis of removal of symptomatic semilunar cartilage have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.45, 4.59, 4.71a including Diagnostic Code 5259 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. 38 C.F.R. § 3.159(b)(1). A March 2010 VCAA letter explained the evidence necessary to substantiate the claim for service connection. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the March 2010 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from a Notice of Disagreement (NOD) with the initial evaluation following the grant of service connection for hypertension. This NOD does not give rise to additional duty to notify on the part of VA. Dingess/Hartman, 19 Vet. App. 473; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). With regard to the duty to assist, the claims file contains service treatment records and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran underwent VA examinations in April 2010 and August 2012 to evaluate the current severity of the service-connected right knee disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports provide a detailed descriptions of the service-connected disability. The examination reports are deemed to be adequate for the purpose of rating of the service-connected disability in accordance with the applicable rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. II. Law and Regulations Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities (Rating Schedule) 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 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this case, staged ratings are not warranted. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10 (2013). 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, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). 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. 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. 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 and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2013). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. III. Analysis The Veteran contends that his service-connected right knee disability is more severe than the currently assigned rating. In an August 2010 rating decision, the RO granted service connection for the right knee disability and assigned a 10 percent evaluation under Diagnostic Code 5260. Diagnostic Code 5260, concerning limitation of flexion of the leg provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). The VA General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Diagnostic Code 5261, evaluating limitation of extension of the leg, provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion for the knee is defined as follows: flexion, 0 degrees to 140 degrees; and extension, 140 degrees to 0 degrees. 38 C.F.R. § 4.71, Plate II (2013). Under Diagnostic Code 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2013). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). An April 2010 VA examination noted that the Veteran reported having difficulty standing for periods of greater than 30 minutes or driving for longer than one hour. The Veteran reported taking over-the-counter medication for pain and denied any other treatment since service discharge. He denied using a knee brace and having flare-ups. He reported having constant pain with some episodes of locking and instability when walking over 100 feet. An examination of the right knee revealed that flexion was performed from 0 to 110 degrees. Extension was noted to be full. There was swelling, edema, erythema or warmth present. There was no additional limitation of range of motion following repetitive use. The lateral joint was tender to light palpation. No tenderness was noted on the medial joint line. Anterior and posterior cruciate ligament stability tests were within normal limits. Medial and lateral meniscus tests were also within normal limits. McMurray testing was negative. Significantly, knee instability, genu varum, genu valgus, and genu recurvatum were not present. There was no fatigability, lack of endurance, or weakness. The examiner assessed mild functional limitation. The X-ray studies performed at that time showed significant degenerative changes and small suprapatellar joint effusion. On VA examination in August 2012, the Veteran reported that his right knee locked with prolonged sitting and swelling occurred with standing. He reported having flare-ups with extended activity. The examination revealed that right knee flexion was performed to 90 degrees with pain at 80 degrees. Extension was to 5 degrees with no objective evidence of painful motion. There was no additional limitation in range of motion of the knee following repetitive testing. Following repetitive motion testing, there was less movement than normal and pain on movement on the right knee. The Veteran had tenderness or pain on palpation of the joint line or soft tissues of the right knee. He had no instability of the right knee or evidence or history of recurrent patellar subluxation or dislocation. The examiner noted residual pan and swelling due to a meniscectomy performed in service. The examiner indicated that the right knee impacted the Veteran's ability to work. To warrant a rating higher than 10 percent under Diagnostic Code 5260, the medical evidence must show flexion limited to 30 degrees or less, which is far exceeded by the 110 degrees of right knee flexion recorded in April 2010 and the 80 degrees of right knee flexion recorded in August 2012. As noted, separate ratings may be assigned for limitation of extension and limitation of extension for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). The August 2012 VA examination report documented extension to 5 degrees. Given the Veteran's complaints of pain on extended use, the Board finds that the service-connected right knee disability picture is productive of a functional loss due to pain that more nearly resembles that of extension limited to 10 degrees. Hence, on this record, a separate 10 percent rating, but no more is assignable under Diagnostic Code 5261. As noted, in DeLuca, the Court held that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by the disability. 38 C.F.R. §§ 4.40, 4.45, and 4.59 (2013). The Board acknowledges that the Veteran complained of having chronic right knee pain and flare-ups with extended activity, along with significant degenerative joint disease. Upon review, to the extent indicated, there is a basis for the assignment of a higher rating on the basis of fatigability, weakness, incoordination and the like. Although the Veteran reported experiencing pain and instability, the Board finds that the manifestations do not warrant the assignment of a rating in excess of the separate ratings of 10 percent assigned for the service-connected right knee disability for period of the appeal. The Board has reviewed the record to determine whether any other Diagnostic Code may be applicable to the Veteran's disabilities and entitle him to a higher rating. As the Veteran has never been diagnosed with ankylosis of the right knee, nonunion or malunion of the tibia and fibula, or genu recurvatum, there is no basis for application of Diagnostic Codes 5256, 5262, or 5263. Notwithstanding the Veteran's complaints of instability, there are no objective medical findings of instability of the right knee and instability testing on examination yielded normal findings. The Veteran has not described any specific incidents of falls or subluxation or frequent episodes of locking. Thus, Diagnostic Codes 5257 and 5258 are not for application. The Board notes that the Veteran had a right lateral meniscectomy performed during service. Based upon the August 2012 VA examiner's finding of residual signs and symptoms due to the meniscectomy, a separate rating is warranted for swelling, a manifestation which is not already contemplated in his range of motion ratings. Therefore, a separate rating of 10 percent is warranted for removal of symptomatic semilunar cartilage under Diagnostic Code 5259. Extraschedular Considerations The Board has considered whether this case should be referred to the Director, Compensation and Pension Service, for extraschedular consideration in rating the Veteran's right knee disability. The governing norm in such exceptional cases is: A finding that the case 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). As discussed, the rating criteria for the service-connected right knee disability reasonably represent the Veteran's disability level and symptomatology. That is, it considers his right knee disability in terms of objective testing and higher schedular evaluations are available under the assigned diagnostic code for greater levels of disability. He had no additional disability on repetitive testing, and no additional disability due to factors such as fatigability and incoordination. Thus, as his disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and there is no basis for referring this issue for extraschedular consideration. See 38 C.F.R. 3.321(b)(1). The matter of entitlement to a TDIU rating will be discussed hereinbelow. The Board notes that the effect of a service-connected disability is measured differently for purposes of extraschedular rating under 38 C.F.R. § 3.321(b)(1) and for purposes of a total disability evaluation based on individual unemployability claim under 38 C.F.R. § 4.16(b). See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). ORDER An increased rating in excess of 10 percent for the service-connected right knee disability on the basis of limitation of flexion is denied. A separate rating of 10 percent, but no more for the service-connected right knee disability on the basis of limitation of extension is granted, subject to the regulations governing the payment of VA monetary benefits. A separate rating of 10 percent for the service-connected right knee disability based on removal of symptomatic semilunar cartilage is granted, subject to the regulations governing the payment of VA monetary benefits. REMAND In cases where the schedular rating is less than 100 percent, a total disability rating may be assigned when the individual is unable to secure or follow a substantially gainful occupation as the result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident will be considered as one disability. Id. In this case, service connection is in effect for a right knee disability, with a 10 percent rating for limitation of extension and 10 percent for removal of symptomatic semilunar cartilage. At this time, the Veteran does not meet the disability percentage standards for a TDIU under 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. The Board notes that it is prohibited from assigning a TDIU in the first instance without referral to VA's Director of Compensation and Pension. The evidence of record indicates that the Veteran has been unemployed at various points throughout the period on appeal. For example, at an April 2010 VA joints examination, the Veteran reported that he retired December 2009. While in an August 2012 VA joints examination report, the examiner stated that the Veteran's service-connected knee disability impacted his ability to work due to pain and swelling with prolong standing, sitting, and walking. Similarly, in his September 2012 Substantive Appeal, the Veteran stated that "[he could not] work in the profession that [he] had for nearly forty years," and was unable to maintain a part-time job as a greeter at Wal-Mart due to his service-connected right knee disability. Therefore, further development to address the Veteran's assertions that the service-connected right knee disability renders him unable to secure and follow a substantially gainful occupation. If a TDIU rating is warranted on an extraschedular basis, the RO would have to refer the matter to the Director of Compensation and Pension. 38 C.F.R. § 4.16(b). Finally, the Veteran should be provided VCAA notice with respect to his claim for a TDIU rating and the opportunity to provide further evidence and argument in the matter on appeal. Accordingly, this remaining matter is being REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO should provide the Veteran with VCAA notice as to what is required to substantiate a claim for a TDIU rating. The Veteran should also be notified that he may submit evidence to support his assertions that he is prevented from working at substantially gainful employment by his service-connected right knee disability. 2. To the extent that the schedular criteria for a TDIU rating are not met, the RO should address whether this matter should be referred to the Director, Compensation and Pension, for consideration of the assignment of a TDIU rating on an extraschedular basis. 3. After completing all indicated development, the RO should readjudicate the Veteran's claim for a TDIU rating in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs