Citation Nr: 1335580 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-29 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease based on noncompensable limitation of motion due to pain from March 30, 2007 to December 3, 2007 (previously characterized as right knee degenerative joint disease based on limitation of flexion prior to December 4, 2007). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to December 1974. This matter is on appeal from the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO). This appeal was processed using the "Virtual Benefits Management System (VBMS)." Accordingly, any future consideration of the case should take into consideration the existence of this electronic record. In June 2012, the Board, in pertinent part, granted a separate rating of 10 percent for right knee degenerative joint disease, throughout the course of the appeal, based on limitation of flexion prior to December 4, 2007. In an August 2012 rating decision, the RO implemented the grant and assigned an effective date of March 30, 2007 (the date of claim). The Veteran appealed this issue to the United States Court of Appeals for Veterans Claims (Court). By order dated April 2013, the Court granted a Joint Motion for Remand (JMR), vacated the June 2012 Board decision for the issue of a rating in excess of 10 percent for right knee degenerative joint disease based on limitation of flexion prior to December 4, 2007, only, and remanded the issue for compliance with terms of the JMR. No other issue fully addressed by the Board in June 2012 is before VA at this time. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. From March 30, 2007 to December 3, 2007, the service-connected right knee degenerative joint disease based on limitation of motion due to pain more closely approximated manifestations of limited flexion, at worst, to 75 degrees, limited extension, at worst, to 136 degrees, arthritis with painful motion, swelling, stiffness, grinding, popping, and additional functional loss. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial rating of 20 percent, but no higher, for right knee degenerative joint disease based on noncompensable limitation of motion due to pain from March 30, 2007 to December 3, 2007 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC)s 5010, 5260, 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the April 2013 JMR, the Court held that the Board erred by not adequately addressing the Veteran's functional loss pursuant to 38 C.F.R. §§ 4.40, 4.45, and 4.59 during this small time period. See 38 U.S.C.A. § 7104(d)(1) (West 2002); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Specifically, the Board dismissed any additional compensation based on DeLuca factors because of the ability to move the knee the same after repetitions. The Board did not address evidence relevant to the degree of functional loss during flare-ups or when the joint is used repeatedly over time, such as the April 2006 VA treatment record documenting the Veteran's inability to bend the knee during an exacerbation of right knee pain and swelling, and the 2007 VA examiner's statement that the Veteran had marked interference with motion, fatigability, and his overall loss of function in terms of walking, driving, or standing. It was instructed that, on remand, the Board should adequately address the Veteran's functional loss during flare-ups and when the joint is used repeatedly over time demonstrated by the evidence of record, and provide adequate reasons or bases as to why the Veteran is not entitled to a higher rating. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Board has reviewed the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2013). Pursuant to the rating criteria for the knee, the Veteran's service-connected right knee degenerative joint disease based on noncompensable limitation of motion due to pain is rated at 10 percent disabling from March 30, 2007 to December 3, 2007. See 38 C.F.R. §§ 4.59, 4.71a, DCs 5010, 5260, 5261 (2013). Arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. Id. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, a 10 percent evaluation is assigned where there is x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups, and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. Limitation of motion of the knee is addressed under 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. DC 5261 provides for a 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2013). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71 , Plate II. During the appeal period on appeal, the pertinent evidence of record shows right knee flexion limited, at worst, to 75 degrees, and extension limited, at worst, to 135 degrees, as noted on the August 2007 VA examination report. Thus, the Board finds the Veteran's service-connected disability on appeal manifests noncompensable limitation of motion, providing highly probative evidence against this claim. Nevertheless, VA's General Counsel has held that a separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. See VAOPGCPREC 9-98; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Burton v. Shinseki, 25 Vet. App. 1, 3-4 (2011). 38 C.F.R. § 4.59 provides that with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. As explained in the June 2012 Board decision, the August 2007 VA examiner diagnosed the Veteran as having severe degenerative joint disease of the right knee, based on October 2006 VA outpatient x-ray findings. An April 2007 VA outpatient treatment record also reveals the Veteran's complaints and objective findings of right knee pain. As a result, in the June 2012 decision, the Board granted a separate 10 percent rating, the minimum available, on the basis of noncompensable limitation of flexion due to pain, thus the application of 38 C.F.R. § 4.59 was contemplated. Next, the Board considers whether the criteria for a disability rating in excess of 10 percent for arthritis with painful motion of the right knee has been met based on functional impairment. 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 or evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (2013). The factors involved in evaluating, and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. At the time of an April 2007 VA outpatient visit, the Veteran stated that he walked two miles per day (a fact that only provides evidence against his claim) and that his knees were very painful by the end of the day. Examination of the right knee revealed enlargement of the joint and some medial post knee discomfort. On VA examination in August 2007, the Veteran stated that he could walk at most one block before having to stop and take a break. He took pain pills three times per day and still had difficulty walking sometimes. The Veteran reported having morning stiffness, grinding, and popping. He also noted having stiffness after sitting for a period of time and more so during cold weather. The Veteran stated that his knee was swollen most of the time. The Veteran indicated that he was in flare-up all the time but that he had an aggravation of pain once a week, which would last for a number of hours. He stated that the range of motion was markedly decreased at that time. The Veteran noted having mechanical instability but because of the pain he limped and had to walk very carefully. He did not like to step on uneven grounds or very hard surfaces. He wore good tennis shoes and could not walk fast or run. Physical examination revealed that the Veteran came into the office limping on his right side. The right knee was large due to osteophytosis and joint effusion. There was atrophy of the thigh muscles on the right. Patellar crepitus was positive and joint line tenderness was extremely positive over the medial and lateral compartment. There was tenderness along the edges of the kneecap. Motor strength of the quadriceps and hamstrings was decreased due to pain. During active range of motion on the Veteran three times. The Veteran was very guarded with motion and was somewhat shaky when doing range of motion testing. He was slow and the motions were noted to be painful and the pain increased with repetitions. However, he was able to maintain the range of motion during the three repetitions, providing evidence against this claim. The examiner concluded the results were positive for increase in pain and feeling of fatigability. The Veteran was slow with motion and there was marked loss of range of motion and motions that were painful. The VA examiner further concluded the Veteran had more pain at the end of the day and was exhausted. The Veteran stated that he managed to do his work but had significant pain and had significant changes in his lifestyle to avoid any excessive standing or walking. The examiner stated that it was possible that during flare-ups and during certain conditions the Veteran may have additional feelings of fatigability or lack of endurance or slowness of motion; however, it would be mere speculation on his part to guess the degree of additional impairment. In a November 2007 letter, the Veteran's spouse indicated that she had been married to the Veteran for 27 years. She stated that the Veteran had come to the point in his life where he could no longer stand the pain in his leg nor all the missed work caused by the pain. She noted that the Veteran had missed approximately one day of work per month. He was also not able to perform outside chores such as mowing the lawn, raking the leaves, pruning the trees or other yard activities. She further noted that the Veteran could not play any sports with his son and that he had missed a lot of activities with his daughter. She indicated that the Veteran was not able to walk very much and that he had fell flat on his face on several occasions. She noted that the knee would go out and he would fall down. Simply stated, at best, the evidence discussed above indicates the Veteran exhibited additional functional loss of the right knee during the period on appeal due to fatigability, incoordination, less movement than normal, and pain on movement, to include swelling, deformity during flare ups, and after repetitive use. Therefore, giving the Veteran the benefit of all doubt, and to avoid further proceedings in this matter, and the fact that an examination of the Veteran for a knee problem at this point would have highly limited probative value (in the extreme) as we are attempting to address the Veteran's knee condition from prior to December 2007 (more than five years ago), the Board finds that the pertinent evidence of record shows that the degree of functional loss during flare-ups and when the joint is used repeatedly over time rises to the level warranting a 20 percent rating, but no higher, during the course of this appeal period pursuant to 38 C.F.R. §§ 4.40 and 4.45. Regarding a higher rating, beyond 20%, it is important to note that not all evidence in this case supports the grant of this claim above. Without giving the Veteran all benefit of the doubt, the current finding could not be justified, let alone a higher rating. In this regard, there is significant evidence in this case that does not support the Board's grant of this claim, which would clearly not support any higher evaluation of this disability. A 20 percent evaluation will cause the Veteran many problems (generally speaking a 20% reduction in industrial adaptability), problems cited within the lay statements cited above, and taken into consideration by the Board in the granting of this claim. The Board notes that pertinent VA outpatient treatment records, dated April 2006 and October 2006, are of record pertaining to the Veteran's degree of functional impairment. Nevertheless, the effective date is the date entitlement arose or the date of claim, whichever is later, which in this case is the date of claim in March 2007. See 38 C.F.R. § 3.400 (2013). As a result, the Board finds that any further discussion of the evidentiary record prior to March 2007 will not warrant higher ratings at any time for the initial rating period on appeal from March 30, 2007 to December 3, 2007. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2013); Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran reported having pain in his right knee following a day of work, and his wife indicated the Veteran missed one day of work per month as result of his knee. The Board acknowledges the Veteran's right knee symptomatology of missing a day of work are not contemplated by the rating schedular criteria (38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5260, 5261); however, during the period in question, the Veteran maintained full-time employment as a car salesman. The service-connected disability also did not require any periods of hospitalization prior to the right knee total knee arthroplasty (TKA) on December 4, 2007, and there are no other exceptional factors were reported. As such, the criteria for assignment of an extra-schedular rating are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify has been satisfied by April 2007 and July 2008 letters. Regarding the duty to assist, the evidence of record includes VA outpatient treatment records and an August 2007 VA examination report. The VA examiner recorded pertinent examination findings and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative regarding the nature and severity of the service-connected disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds no further assistance to the Veteran with the development of evidence is required. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial rating of 20 percent, but no higher, for right knee degenerative joint disease based on noncompensable limitation of motion due to pain from March 30, 2007 to December 3, 2007 is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs