Citation Nr: 1338156 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-29 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for right knee instability. 2. Entitlement to an initial rating in excess of 10 percent for right knee arthritis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2010. REPRESENTATION Veteran represented by: Jan D. Dils, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1968. He is a recipient of the Purple Heart. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in pertinent part, granted service connection and assigned a 10 percent initial rating for right knee arthritis effective April 15, 2002. The Veteran appealed the initial rating assigned. While the appeal was pending, in a July 2006 rating decision, the RO granted service connection and assigned a 20 percent initial rating for right knee instability effective April 15, 2002. The Veteran appealed this initial rating as well. In July 2004, the Veteran testified before a Decision Review Officer at the RO. He also testified at a Travel Board hearing before the undersigned in June 2009. Transcripts of both hearings are of record. The Board remanded the claims in October 2009 and September 2011 for additional development. In September 2012, the RO awarded a TDIU effective June 1, 2010. As noted on the title page, the Veteran's entitlement to a TDIU prior to June 1, 2010 remains in appellate status, as it is part of the initial rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). FINDINGS OF FACT 1. For the entire appeal period, the Veteran's right knee disability has been manifested by severe instability. 2. For the entire appeal period, right knee arthritis has been manifested by flexion limited to, at worst, 70 degrees with pain. 3. Prior to June 1, 2010, the Veteran's service-connected disabilities did not prevent him from securing or following substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. For the entire appeal period, a 30 percent rating is warranted for right knee instability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for an initial rating in excess of 10 percent for right knee arthritis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2013). 3. The criteria for a TDIU are not met prior to June 1, 2010. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The issues remaining on appeal arise from the Veteran's disagreement with the initial rating assigned following the grant of service connection. Once service connection is granted and the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the Board finds that VA's duty to notify the Veteran is satsfied. Regarding the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claims for higher initial ratings in October 2002, February 2005, January 2007, December 2009, and March 2012. The Board notes that the October 2002 and December 2009 VA examination reports did not adequately discuss additional functional impairment due to pain and other factors during periods of flare-ups and with repetitive use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, other VA examinations did adequately address these factors. As a whole, the examiners reviewed the Veteran's claims file, considered his complaints, conducted appropriate physical examinations, and provided complete rationales for all opinions expressed. The examination reports have been reviewed and found to be collectively adequate, as together they address the Veteran's symptoms in relation to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board is satisfied that there was substantial compliance with its prior remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained outstanding VA outpatient records and scheduled the Veteran for the requested VA examinations. As noted above, the Board finds that these examinations are adequate to make a determination in the case. The Veteran was also provided an opportunity to set forth his contentions at a Board hearing conducted in June 2009. The record reflects that at the hearing the undersigned set forth the issues to be discussed, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. In all, the duty to assist has also been fulfilled. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When 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. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court discussed the concept of the "staging" ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca, 8 Vet. App. at 204-7; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, a 10 percent rating has been assigned for right knee arthritis pursuant to Diagnostic Code 5010 (traumatic arthritis) and a 20 percent rating has been assigned for right knee instability pursuant to Diagnostic Code 5257 (recurrent subluxation or lateral instability). Each initial rating is effective April 15, 2002. 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. § 4.71, Diagnostic Codes 5003, 5010. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 60 degrees is 0 percent; flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of knee extension are assigned as follows: extension limited to 5 degrees is 0 percent; 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 20 percent rating is assigned for moderate impairment of the knee due to recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe impairment of the knee due to recurrent subluxation or lateral instability. As noted, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In that regard, separate evaluations may be assigned for non-overlapping manifestations of knee disability. See e.g. VAOPGCPREC 9-2004, published at 69 Fed. Reg. 59,990 (Oct. 6, 2004) (separate ratings for limitation of flexion and extension of the knee); VAOPGCPREC 9-98, published at 63 Fed. Reg. 56,703 -04 (Oct. 22, 1998) (separate ratings for instability and limitation of motion); VAOPGCPREC 23-97, published at 62 Fed. Reg. 63,604 (Dec. 1, 1997) (to the same effect). The combined evaluation for the affected leg, however, cannot exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Board finds that a 30 percent rating under Diagnostic Code 5257 is warranted for severe right knee instability for the entire appeal period. The Veteran has competently and credibly testified as to continuous giving way and instability, difficulty walking long distances especially over uneven surfaces, and difficulty standing for long periods of time due to his right knee disability. The record is replete with references to the Veteran's use of brace for support and a cane to assist with ambulation. An antalgic gait was demonstrated during the 2002, 2005 and 2007 VA examinations, and a "limping" gait was noted during his 2009 VA examination. The 2012 VA examiner indicated that the Veteran walked with a limp and had "slow propulsion" as a result of his right knee disability. At that time he evidence 1+ laxity on anterior instability, 1+ laxity on posterior instability testing, and 2+ laxity on medial-lateral instability. He evidenced a significant limp favoring the right knee in an April 2003 physical therapy treatment note, and abnormal weightbearing in February 2005. He was described as having limited movement of the right knee in a November 2009 VA emergency treatment record. An April 2008 magnetic resonance imaging (MRI) report reflects a complete rupture of the anterior and posterior cruciate ligaments (ACL and PCL), as well as advanced cartilage loss. A July 2009 report from Dr. J.M.D. describes the Veteran's right knee as "completely" and "globally" unstable, and the 2009 VA examiner indicates that the Veteran's right knee disability is "moderately severe." The above-cited findings allow for assignment of a 30 percent rating under Diagnostic Code 5257, which is the maximum available under that code. Regarding the Veteran's right knee arthritis, which as noted above is rated based upon limitation of motion, to warrant a higher 20 percent rating for limitation of flexion under Diagnostic Code 5260, the evidence must show flexion limited to 30 degrees. In this case, at worst, active right knee flexion was limited to 75 degrees with pain beginning at 70 degrees during the January 2007 VA examination. During repetitive-use testing, flexion was further limited to 70 degrees. All other range of motion testing revealed greater flexion. For example, during the October 2002 VA examination, flexion was to 80 degrees. An April 2003 physical therapy note indicates flexion was limited to 95 degrees. During the February 2005 VA examination, flexion was limited to 95 degrees with pain beginning at 85 degrees and no additional limitation with repetitive testing. On December 2009 VA examination, flexion was limited to 100 degrees with pain at the endpoint and no additional limitation with repetitive testing. During the March 2012 VA examination, flexion was limited to 105 degrees with pain at the end point and no additional limitation with repetitive testing. Based on the foregoing, the Board finds that a 20 percent rating for limitation of flexion is not warranted. The Board acknowledges that the Veteran had pain during range of motion testing; however, at worst, pain began at 70 degrees of flexion. Even during repetitive-use testing, at worst, flexion was only limited to 70 degrees. The examiners indicated that there was no additional loss of flexion beyond that point. The March 2012 VA examiner also noted that in addition to pain, limited motion, and instability, there was weakened movement, excess fatigability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. However, the evidence does not show these factors caused additional functional loss beyond that contemplated by a 10 percent evaluation. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As such, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 5260. The Board also finds that a separate rating is not warranted for limitation of extension of the right knee under Diagnostic Code 5261. Although the January 2007 VA examination noted extension limited to 10 degrees and a March 2010 VA outpatient treatment noted decreased extension because of edema, these findings are inconsistent with the majority of the evidence, which shows that the Veteran had full extension on multiple occasions. See VA examinations dated in October 2002, February 2005, December 2009, and March 2012; and VA treatment records dated in April 2003, January 2007, and October 2007. Moreover, during the December 2009 Board hearing, the Veteran himself testified that he was able to straighten his right leg (i.e., full extension), but was not able to bend it (i.e., limited flexion). Hearing Transcript (Tr.) at 9. Therefore, these isolated findings of limited right knee extension followed by periods of full extension are reflective of an anomaly and not representative of a distinct period of worsened symptoms to warrant a staged rating. The Board additionally observes that assigning yet a separate 10 percent rating for limitation of extension of the right knee would violate the "amputation rule," which provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. See 38 C.F.R. § 4.68. Amputation of the leg, permitting prosthesis, warrants a 40 percent rating, and the Veteran is now in receipt of a 40 percent rating for his right knee over the entire appeal period. See 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Code 5165. In light of the other evidence of record, the Board finds that a separate rating for limitation of extension of the left knee is not warranted at any time during the appeal period. The Board has also considered other potentially applicable diagnostic codes. Diagnostic Code 5258 provides a 10 percent rating for dislocated semilunar cartilage and Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. See 38 C.F.R. § 4.71a. In this case, the February 2005 VA examiner noted that there was meniscus abnormality, which was based on the Veteran's reports of knee pain and catching with turning while walking or turning over in bed. The impression was a medial meniscal injury; however, the examiner ordered an MRI for further assessment. The April 2005 MRI showed no evidence of a meniscal tear; the menisci were essentially normal. The April 2008 MRI showed advanced cartilage loss; however, McMurray's test was negative in December 2009 and March 2012. Significantly, the March 2012 VA examiner specifically noted that there was no history of a meniscal condition. For these reasons, the Board does not find that the Veteran is entitled to a separate rating under Diagnostic Codes 5258 or 5259 for any injury or removal of the right knee menisci. In addition, the Veteran does not have ankylosis, impairment of the tibia or fibula, or genu recurvatum (Diagnostic Codes 5256, 5262, 5263). Therefore, these diagnostic codes are inapplicable in this case. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The Board also notes that separate ratings are not warranted for any right knee scars. Although the March 2012 VA examiner noted that the Veteran had a three centimeter (cm) linear scar on the posterior aspect of his right knee, he indicated that the scar was barely visible, not painful and/or unstable, and did not total an area greater than 39 square centimeters (6 square inches). Based on these findings, a separate compensable rating for the scar is not warranted. See 38 C.F.R. § 4.118, 7801-7805. The Board has also considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between 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. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). In this case, the rating criteria reasonably describe the symptomatology related to the Veteran's right knee arthritis and instability. He has described symptomatology involving pain, swelling, locking, giving way, and limited mobility. Diagnostic Code 5257 specifically contemplates instability and subluxation. Furthermore, as discussed above, the 10 percent rating under Diagnostic Code 5260 specifically contemplates limited motion, including functional impairment due to pain and other factors. Consideration has also been given to 38 C.F.R. §§ 4.10, 4.40, and 4.45. In addition, Diagnostic Codes 5257 and 5260 provide for higher ratings for the Veteran's overall knee disability. For these reasons, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). TDIU Prior to June 1, 2010 As noted above, the RO granted a TDIU effective June 1, 2010; however, the question remains whether the Veteran is entitled to a TDIU prior to that date. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). In this case, the Veteran has been granted service connection for posttraumatic stress disorder (70 percent effective April 15, 2002), right knee instability (30 percent effective April 15, 2002), right knee arthritis (10 percent effective April 15, 2002), and for scars of the left knee (0 percent effective September 13, 1978). He meets the minimum percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). The remaining question, then, is whether his service-connected disabilities, alone, render him unable to secure or follow a substantially gainful occupation. Marginal employment, defined as an amount of earned annual income that does not exceed the poverty threshold determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Here, the record reflects that the Veteran was consistently employed during the appeal period. He last worked as a truck driver for Sentinel Transportation, LLC and retired effective May 31, 2010. See June 2012 VA Form 21-4192. Although he lost 312 hours in the 12 months preceding his last date of employment due to disability, the amount he earned before deductions was $55,561.37, which well exceeds poverty thresholds. Id. Hence, despite time lost, the Veteran's employment was not marginal. A TDIU rating may not be assigned prospectively prior to when a Veteran is actually unemployed or in anticipation of unemployment. Rather, as noted above, the Veteran must be "unable to secure or follow a substantially gainful occupation." 38 C.F.R. § 4.16(a). As the above-cited evidence reflects that the Veteran remained gainfully employed prior to June 1, 2010. Accordingly, the Board finds that a TDIU prior to June 1, 2010 is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 30 percent rating for right knee instability is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. An initial rating in excess of 10 percent for right knee arthritis is denied. A TDIU prior to June 1, 2010 is denied. ____________________________________________ Sonnet Gorham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs