Citation Nr: 1336343 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 07-34 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial evaluation of right knee instability, currently rated as 10 percent disabling prior to August 26, 2010, and in excess of 30 percent thereafter. 2. Entitlement to a rating in excess of 10 percent for status post meniscectomy with degenerative changes, right knee. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to August 1991. This matter came to the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In August 2010, the Veteran testified at a personal hearing before the undersigned acting Veterans Law Judge. A transcript of this hearing is of record. The hearing addressed the elements of the claims and the evidence needed to support the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010). The issues were previously remanded by the Board in January 2011 for further development. In addition to the paper claim files, the Veteran also has an electronic claim file in Virtual VA. The Board has reviewed both the paper and electronic claim files in rendering this decision. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. During private evaluations dated in November 2009, the Veteran reported he retired from his job due to his right knee symptoms. Therefore, the issue of entitlement to TDIU has been raised during the course of the appeal. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending claim. The issue of entitlement to TDIU is addressed in the remand portion of the decision below and is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to August 26, 2010, the right knee instability has been manifested by no more than slight symptoms. Since August 26, 2010, the Veteran is receiving the maximum available disability rating for right knee instability. 2. Osteoarthritis of the right knee is manifested by painful motion with flexion at worst of 90 degrees on repetitive use and full extension; ankylosis and factors that produced additional functional loss were not shown CONCLUSIONS OF LAW 1. Prior to August 26, 2010, the criteria for a disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. Since August 26, 2010, the criteria for a disability rating in excess of 30 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 3. The criteria for a disability rating in excess of 10 percent right knee osteoarthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1) ,3.102, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to 'notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim.' 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must 'indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary ...will attempt to obtain on behalf of the claimant.' 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board finds that a VCAA letter dated in December 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The VCAA letter informed the Veteran of what information or evidence was needed to support his claim what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. Notice as to how VA assigns disability ratings and effective dates was provided in a letter of March 2006. The letters predated the rating decision. The Board also concludes that VA's duty to assist has been satisfied. See 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159(c) (2012). All of the Veteran's service treatment records, and VA and private treatment records have been associated with the claims file, and the Veteran has not identified any outstanding post-service treatment records for VA to obtain. VA's duty to assist also includes the duty to provide a VA examination when the record lacks evidence to decide a veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded various VA examinations, to include in response to a January 2011 Board remand for additional development. The VA examination reports described the disabilities in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.' Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Therefore, the Board concludes that there was substantial compliance with the directives contained in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria The Veteran seeks an increased disability evaluation for his service connected right knee. The Veteran is currently in receipt of two separate evaluations for his right knee: (1) a 10 percent rating prior to August 26, 2010, and of 30 percent thereafter, based on instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257, and (2) a 10 percent disability rating based on limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5260. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Traumatic arthritis will be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The standard ranges of motion of the knee are zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is rated under Diagnostic Codes 5260 and 5261. Leg flexion limited to 60 degrees warrants a noncompensable evaluation; flexion limited to 45 degrees warrants a 10 percent evaluation; flexion limited to 30 degrees warrants a 20 percent evaluation; and, flexion limited to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Leg extension limited to 5 degrees warrants a noncompensable evaluation; extension limited to 10 degrees warrants a 10 percent evaluation; extension limited to 15 degrees warrants a 20 percent evaluation; extension limited to 20 degrees warrants a 30 percent evaluation; and, extension limited to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Moreover, Diagnostic Code 5257 provides a 10 percent evaluation for lateral instability or recurrent subluxation of a knee that is slight, a 20 percent rating when those symptoms are moderate, and a 30 percent rating when severe. The terms 'mild,' 'moderate,' and 'severe' are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are 'equitable and just.' 38 C.F.R. § 4.6. It should also be noted that use of terminology such as 'mild' or 'moderate' by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims has held that a higher rating can be based on 'greater limitation of motion due to pain on use.' DeLuca, 8 Vet. App. at 206. A finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2012); see also Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Factual Background Historically, service connection was initially established for a status post meniscectomy with degenerative changes in a July 2002 rating decision. A disability evaluation of 10 percent was assigned under Diagnostic Code 5260, effective from July 30, 2001. Subsequently, in a June 2006 rating decision, the Veteran was granted a separate disability evaluation of 10 percent for instability of the right knee under Diagnostic Code 5257, effective from November 29, 2005. In the June 2006 decision, the RO continued the previously assigned 10 percent disability evaluation for the service-connected residuals of the Veteran's status-post meniscectomy. The Veteran expressed disagreement with the June 2006 RO decision. The instant appeal ensued. During the pendency of the appeal, in a rating decision of May 2012, the RO increased the Veteran's disability evaluation to 30 percent for his right knee instability, effective from August 26, 2010. In a March 2005 private treatment record, the Veteran complained of bilateral knee pain. He states that his knee pain precludes him from walking recreationally more than about a mile to a mile and a half. He quit running, but he is able to bicycle. He has pain going down stairs and getting out of chairs. He reported occasional buckling sensation in the right knee, particularly when going down stairs. Upon physical examinations, the knee showed no swelling or erythema. The right knee had neutral alignment on inspection. There was tenderness along the medial joint line. Range of motion was from zero to 140 degrees. He had good strength on resisted flexion and extension testing of the knee. The Veteran had a negative Lachman's test, negative pivot shift, negative anterior and posterior drawer signs, and no pain or instability on varus and valgus stressing. X-ray testing showed advanced osteoarthritis. During a January 2006 VA examination, the Veteran complained of continuous pain in his right knee. He stated that he does not miss work because of right knee pain. Flare-ups are caused by prolonged standing, any attempted stair-climbing or hard impact activities. During a flare-up, he loses range of motion, chiefly flexion, and to a lesser extent, extension, though neither of these was quantified. The effect on his usual occupation is to limit physical activity such as prolonged standing, walking, and stair-climbing, running, jumping, or hard impact activity. This effect is also on the activities of his daily living. Upon physical examination, the examiner noted extension limited to two degrees with discomfort at endpoint. Flexion was noted to 95 degrees. There was no demonstrable instability. Against resistance and repetition, there was no reduction in the range of motion, but there was some impaired endurance. The diagnosis was degenerative joint disease of the right knee. In an August 2006 letter, the Veteran's private physician indicated that the Veteran is limited in ambulation to one block of pain-free gait and then has disabling right knee pain. The Veteran complained of pain with position changes and on stairs. On physical examination, his right exhibited full extension with flexion to 110 degrees. There was no ligamentous instability. X-ray showed osteoarthritis. In an October 2007 letter, the Veteran's private physician reported that the Veteran's knee symptoms have continued to intensify and exacerbate. Upon physical examination, the Veteran demonstrated patellofemoral crepitation with normal patellar tracking. His range of motion was measured by a goniometer as extension to 10 degrees and flexion to 106 degrees. X-ray testing showed advanced medial compartment osteoarthritis. In a November 2009, August 2010, and February 2011 private treatment records, the Veteran reported that he retired from his job as a warden; due to his ongoing symptoms of his right knee. He complained of right knee pain worse going up and down steps. He has occasional night pain. Pain is worse at the end of the day. He wears a brace on occasion and he is unable to do any squatting or kneeling activities. He had occasional swelling. Upon physical examination, the Veteran's range of motion was from zero to 110 degrees. He had no pain or instability on varus and valgus stressing. He has a mild antalgic gait and he has a mild varus deformity. The knee showed no signs of swelling or erythema. Lachman's, pivot shift, anterior and posterior drawer, and McMurry's testing were all negative. X-ray images showed advanced osteoarthritis of the right knee. During a March 2011 VA examination, the Veteran reported he can stand for 10 minutes, walk for 5 to 6 minutes, and sit for almost 16 minutes depending on the position. He cannot tolerate sitting in a vehicle over an hour. He has difficulty navigating stairs. He missed 3 to 4 days of work in his last year of working, but grinned and bared it many other days, resorting to early retirement. He has had a cane since the early 1990s. He has difficulty at the service center when he has to bend over to reach files in the lowest drawer, due to both his knee and his back. He is unable to kneel, climb ladders, or crawl due to his knee. Upon physical examination, the examiner noted he has minimal right knee flexion during the swing phase of gait. There is enlargement of the right knee joint itself without palpable effusion, but tenderness over both the medial and lateral joint line. There is medial and lateral laxity and instability. Pain was noted on attempts at Lachman's and McMurry's testing, but no instability noted on these tests. Pain is improved with offloading of the medial compartment. Range of motion was to 110/105 degrees flexion and 3 degrees extension. Following repetitive motion, there is an improvement of 10 degrees of flexion and of 3 degrees of extension (now neutral or zero degrees). Following knee bends and ambulation, there is an extra 10 degree loss of range of motion in the right knee flexion due to impaired endurance and painful motion. The examiner noted that flexion range appeared to be in the same range yet functionally he is more limited due to pain in terms of his distance of ambulation, ability sit for an extended period of time, and now impaired sleep and mood. He is experiencing regular flares when he goes to use the knee with repeated forward bending and flexion to reach things on the ground. He retired early due to knee pain requiring bracing, constant use of a cane, and oral medication supplementation. Therefore, an additional 10 degrees of limited flexion is noted due to repeated use and flare-ups with bending. Analysis With regards to the right knee instability under Diagnostic Code 5257, upon consideration of the evidence above, the Board finds that the objective evidence shows that the left knee instability is no more than slight prior to August 26, 2010, and therefore a disability rating in excess of 10 percent is not warranted. In this regard, the Board notes that objective evidence of record during this time shows no instability. In fact, anterior and posterior drawer signs were consistently negative. McMurray's was also consistently negative, varus and valgus, and Lachman's were consistently normal. During this time, there were no objective findings of moderate instability to include on VA examination in January 2006 or private examinations in October 2007 and November 2009. Therefore, the evidence shows that the Veteran has no more than slight instability of the right knee. Even when considering the Veteran's reports of giving way, there is no showing of moderate instability. Indeed, the Veteran has consistently reported using a knee brace only occasionally in November 2009 and August 2010. Therefore, even when considering the Veteran's assertions, which the Board has no reason to doubt their credibility, the Board finds that the evidence prior to August 26, 2010 simply does not rise to the level of moderate instability and a disability rating in excess of 10 percent is not warranted. As to whether a disability rating in excess of 30 percent since August 26, 2010 is warranted, the Board notes that 30 percent is the maximum available rating for instability under Diagnostic Code 5257. Accordingly, there is no basis on which to grant a higher disability rating. With regards to the separately rated arthritis with loss of motion, the Board finds that the evidence does not support a disability rating in excess of 10 percent. Indeed, in order to warrant a disability rating in excess of 10 percent, the evidence must show flexion limited to 30 degrees or extension limited to 10 degrees. Upon review of the evidence above, the Board finds that there is no lay or medical evidence that suggests that flexion is limited to less than 30 degrees. The Veteran's right knee disability has not, at any time, exhibited a functional loss equivalent to flexion limited to 30 degrees needed to warrant a 20 percent disability rating under Diagnostic Code 5260. At worst, flexion was estimated to be to 85 degrees with repetitive use during the March 2011 VA examination. Here, the objective clinical findings consistently fail to show that his disability meets the criteria for an increased rating. The Board notes that the Veteran has reported that he has decreased activity and limitation of motion and the Board finds these statements to be credible. However, the current evaluation actually contemplates these symptoms. In addition, he has not indicated and the evidence does not show, that he has limitation of extension of less than 10 degrees to warrant a compensable evaluation. Accordingly the Veteran is not entitled to a rating in excess of 10 percent based on limitation of motion under DCs 5260 or 5261. As there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum, at any time during the claim, DCs 5256, 5262, and 5263 are not for application in this case. The Board notes that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an 'extra-schedular' evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1) (2012). Thun v. Peake, 22 Vet. App. 111. In this case there has not been shown to have been any hospitalizations due to the Veteran's right knee disability. The Board, however, finds that the medical evidence fails to show anything unique or unusual about the Veteran's right knee disability that would render the schedular criteria inadequate. The Veteran's primary right knee symptoms include pain, mild instability, and slight limitation of motion, and these factors are specifically accounted for in the rating criteria. Consequently, a referral for extraschedular consideration is not indicated. ORDER Entitlement to an initial evaluation of right knee instability, rated as 10 percent disabling prior to August 26, 2010, and in excess of 30 percent thereafter, is denied. Entitlement to a rating in excess of 10 percent for status post meniscectomy with degenerative changes, right knee, is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the Veteran's TDIU claim must be remanded for further evidentiary development. As alluded to above, the record reflects that the Veteran is unable to work due to his service-connected right knee disabilities. Indeed, the private letters from the Veteran's physician indicate that he had to take an early retirement due to his right knee symptoms. The Board finds that, based on the examination report, the issue of TDIU has been reasonably raised by the record. As noted in the Introduction above, the Court has held that TDIU is encompassed in a claim for increased rating or the appeal of an increased rating when such is reasonably raised in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to TDIU should be adjudicated by the RO in light of the Court's decision in Rice. Furthermore, on review of the record, the Board finds that additional development is required to ascertain whether the Veteran's service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The Court has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the veteran's disability does not prevent performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, the Court specifically stated that VA has a duty to supplement the record by obtaining an examination which includes an opinion on what effect the Veteran's service-connected disability has on the ability to work. Friscia, at 297, citing 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009); Beaty v. Brown, 6 Vet. App. 532, 537 (1994) and Obert v. Brown, 5 Vet. App. 30, 33 (1993). In light of the above, the Board finds that the Veteran requires a current VA examination to ascertain whether unemployability due to service-connected disabilities is demonstrated. Accordingly, the case is REMANDED 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) (2012). Expedited handling is requested.) 1. The RO should send the Veteran a VCAA compliant notice letter informing him of the criteria necessary to establish TDIU. 2. The RO should also ask the Veteran to identify any additional, relevant private or VA treatment records that he wants VA to help him obtain. The RO should take appropriate steps to secure copies of any such treatment reports identified by the Veteran which are not in the record on appeal, to include updated VA treatment records, if in existence. Efforts to obtain these records should be memorialized in the Veteran's VA claims folder. 3. Thereafter, the Veteran should be scheduled for an appropriate VA examination to determine the effect of his service-connected disabilities on employability. The claims folders should be made available to the examiner. The examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or maintain substantially gainful employment solely as a result of his service connected disabilities. The examination report must include a complete rationale for all opinions and conclusions reached. 4. Following the completion of the foregoing, and undertaking any other development it deems necessary, the RO should review the record and adjudicate the Veteran's TDIU claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued an appropriate statement of the case, and afforded an opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). 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). ____________________________________________ E. I. Velez Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs