Citation Nr: 1338384 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-31 830A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for residuals of a fracture of the right knee. 2. Entitlement to an evaluation in excess of 10 percent for residuals of a fracture of the right ankle. 3. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1970 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The July 2010 Statement of the Case included six additional issues (service connection for cataracts and increased ratings for type II diabetes mellitus, neuropathy of bilateral lower extremities, diabetic retinopathy, neuropathy of the hands, and impotency). This Statement of the Case also included a TDIU claim. In August 2010, the Veteran submitted a statement indicating an intent to appeal the ankle rating and also referencing "stress on my knee." The Board has accepted this as a Substantive Appeal on the right knee and right ankle issues. Subsequently, in March 2011, the Veteran submitted a "Notice of Disagreement" indicating disagreement with all determinations in the July 2010 Statement of the Case. In April 2011, the RO notified the Veteran in a decision letter that the March 2011 statement was not submitted in a timely manner and was not accepted as a formal appeal (excepting the right knee and right ankle issues, because of the August 2010 statement). The Veteran was given his appeal rights as to this determination of the timeliness of a Substantive Appeal, but he never responded to the April 2011 decision letter, and the claims for service connection for cataracts and increased ratings for type II diabetes mellitus, neuropathy of bilateral lower extremities, diabetic retinopathy, neuropathy of the hands, and impotency were not referenced in a June 2011 statement from his representative or during video conference hearing testimony in November 2011. The Board therefore finds that the aforementioned six issues are not currently on appeal. The Board does find that the TDIU claim is on appeal, but on account of Rice v. Shinseki, 22 Vet. App. 447 (2009) (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability). The question of unemployability and the Rice case itself was raised by his representative during the November 2011 hearing, and the undersigned Veterans Law Judge affirmed that this matter would be addressed "one way or another" in her decision. That said, for reasons described in greater detail below, the TDIU issue 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. The Veteran's right knee disorder is manifested by no more than slight instability; however, the Veteran also has osteoarthritis of the right knee and has been shown to have pain with range of motion testing. 2. The Veteran's limitation of motion of the right ankle is no more than moderate in degree. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for residuals of a fracture of the right knee, encompassing instability, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for a separate 10 percent evaluation for arthritis of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003 and 5260-5261 (2013). 3. The criteria for an evaluation in excess of 10 percent for residuals of a fracture of the right ankle have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist 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 medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, fully complaint notice letters addressing the Dingess/Hartman requirements were furnished to the Veteran in June 2008, prior to the appealed November 2008 rating decision. The elements of the claims, as well as the types of evidence (e.g., treatment records) that would substantiate the claims, were addressed during the November 2011 hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103(c)(2). In short, there has been full compliance with the Board's notice requirements in this case. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has been afforded multiple VA examinations that have comprehensively addressed the symptoms and severity of the disabilities addressed in this appeal, and the RO has obtained VA treatment records dated through May 2011 from multiple facilities. While the Veteran reported recent VA treatment during his November 2011 hearing, he did not specify any dates of treatment subsequent to May 2011. Moreover, he denied being in receipt of Social Security Administration disability benefits. The Board is thus satisfied that all evidentiary development raised by the record has been accomplished with regard to the claims addressed in this decision, and VA's duty to assist has been met. II. Applicable laws and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning 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. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Also, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. III. Residuals of a fracture of the right knee The Veteran's residuals of a fracture of the right knee have been evaluated at the 10 percent rate under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under this section, slight recurrent subluxation or lateral instability of the knee warrants a 10 percent evaluation, while moderate recurrent subluxation or lateral instability of the knee warrants a 20 percent evaluation. A 30 percent evaluation is in order in cases of severe recurrent subluxation or lateral instability. The United States Court of Appeals for Veterans Claims (Court) has held that the criteria of 38 C.F.R. §§ 4.40 and 4.45, which concern the applicability of a higher evaluation in cases of such symptomatology as painful motion and functional loss due to pain, do not apply in conjunction with Diagnostic Code 5257. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). 38 C.F.R. §§ 4.40 and 4.45 should be applied in conjunction with the remaining knee diagnostic codes, however. See DeLuca v. Brown, 8 Vet. App. at 204-07. Historically, service connection was granted for residuals of an old fracture of the right knee in a June 1982 rating decision in light of in-service trauma and the findings from a May 1982 VA examination. A zero percent evaluation was assigned, effective from February 1982. In a December 2001 rating decision, this evaluation was increased to 10 percent as of February 2001 in light of symptoms shown upon examination in October 2001. The 10 percent evaluation has since remained in effect. During an August 2008 VA examination, the Veteran reported right knee pain and arthritis, with soreness, aching, tenderness, swelling, and giving way. He reported wearing a knee brace. Upon examination, there was range of motion from zero to 125 degrees, with pain at the extremes of motion. Repetitive use caused increasing pain, and flare-ups occurred with heavy use. The knee was noted to be stable to medial testing and slightly loose to anteroposterior testing. X-rays documented arthritis of the right knee. The diagnosis was a residual fracture of the right knee with arthritis. A VA treatment record from April 2009 indicates rheumatology visits and injections for the right knee. An examination revealed mild cool effusion of the right knee, no increased warmth or erythema, and full active range of motion. The assessment was moderate osteoarthritis of the right knee. A September 2009 letter from a VA physician's assistant indicates that the Veteran had advanced osteoarthritis of both knees, causing concern for kneeling and being in confined areas where his knees might lock or if he had to traverse roofs and stairs, increasing the risk for accident and falls. A January 2011 VA treatment record indicates that the Veteran, who was undergoing corticosteroid treatments for the right knee, had motion from zero to 110 degrees, with slight tenderness to palpation overlying the medial joint line, slight pain to patellar grind, and a mild effusion. The examiner noted that "at some point" the Veteran might like to proceed with a total knee arthoplasty but was instead asking for an injection at that point. A second VA examination was conducted in April 2011, with an examiner who reviewed the claims file. The examiner noted that the Veteran had chronic pain, weakness, swelling, stiffness, instability, giving out, and occasional locking of the right knee. He wore a right knee brace. While the examiner noted "no restriction with employment," the Veteran was described as having a difficult time climbing up ladders and being unable to do heavy lifting "half the time any more." The examination revealed zero degrees of extension and 120 degrees of flexion, with pain at 80 degrees. Other symptoms included slight loosenesss with anterior and posterior drawer testing and tenderness over the medial and lateral joint lines. Repetitive flexion and extension showed no change in motion, although there were increased pains. The Veteran denied periods of flare-ups. There was a slight instability with anterior and posterior drawer sign of the right knee, but no instability with varus and valgus stress testing. X-rays showed significant degenerative changes in the right knee. The diagnosis was residuals of a right knee fracture with arthritic changes. During his November 2011 hearing, the Veteran reported receiving right knee injections and noted worsening symptoms of the knee. In terms of instability, the Board finds that the 10 percent rating under Diagnostic Code 5257 is appropriate in this case. This instability was described as slight in the April 2011 VA examination report, and there is no medical or other evidence of record indicating a higher level of severity of instability. The Board would again point out that 38 C.F.R. §§ 4.40 and 4.45 are not applicable in regard to Diagnostic Code 5257. That notwithstanding, the Board does find that a separate 10 percent evaluation is warranted for arthritis. See VAOPGCPREC 23-97 (July 1, 1997); see also VAOPGCPREC 9-98 (August 14, 1998). Arthritis has been confirmed by x-ray, and the findings of pain between 80 and 120 degrees of motion and increased pain with repetitive testing warrant a 10 percent evaluation, in light of 38 C.F.R. §§ 4.40 and 4.45, as well as DeLuca. The Board would point out that there is no basis for an increased evaluation based upon flexion limited to 30 degrees (Diagnostic Code 5260) or extension limited to 15 degrees (Diagnostic Code 5261). Also, as the Veteran has right knee motion from zero to at least 110 degrees, findings which taken in isolation would not even meet the criteria for noncompensable evaluations under Diagnostic Codes 5260 and 5261, there is no basis for separate evaluations for extension and flexion under VAOPGCPREC 9-2004 (Sept. 17, 2004). Finally, there is no evidence of ankylosis (Diagnostic Code 5256), findings concerning semilunar cartilage (Diagnostic Code 5259), or impairment of the tibia or fibula (Diagnostic Code 5262). The Board is aware of the Veteran's subjective complaints, as well as the evidence suggesting "advanced" osteoarthritis of the right knee. The Board does not find that this evidence is sufficient to warrant an even higher evaluation for arthritis, as Diagnostic Code 5003 (concerning degenerative arthritis) directs attention to codes based upon limitation of motion for ratings, and, as noted above, the findings in this case unambiguously fall well short of the criteria for a 20 percent evaluation under both Diagnostic Codes 5260 and 5261. In summary, the evidence does not support an evaluation in excess of 10 percent for the Veteran's service-connected right knee disorder, insofar as instability is concerned. However, the Veteran's arthritis of the right knee, confirmed by x-ray and manifested by pain on objective testing, warrants a separate 10 percent evaluation, though not higher. To that extent only, the appeal is granted. IV. Residuals of a fracture of the right ankle The RO has evaluated the Veteran's right ankle disability at the 10 percent rate under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under this section, a 10 percent evaluation is assigned for moderate limitation of ankle motion, whereas a maximum 20 percent evaluation is assigned for marked limitation of motion. Normal ankle motion is zero to 20 degrees of dorsiflexion and zero to 45 degrees of plantar flexion. Historically, service connection was granted for residuals of an old fracture of the right ankle in a June 1982 rating decision in light of in-service trauma and the findings from a May 1982 VA examination. A zero percent evaluation was assigned, effective from February 1982. During an August 2008 VA examination, the Veteran reported an old fracture to the right ankle. Range of motion testing revealed motion "from zero degrees of dorsiflexion to 40 degrees of plantar flexion," with pain at the extremes of motion. The diagnosis was a residual fracture of the right ankle. Based upon these findings, the RO increased the Veteran's evaluation to 10 percent as of March 2008 (the date of claim) in a July 2010 Statement of the Case and corresponding rating decision. A second VA examination was conducted in April 2011, with an examiner who reviewed the claims file. The veteran reported that the right ankle sprained very easily, with pains made worse with prolonged walking, standing, climbing of ladders, and squatting. He wore a right ankle brace. While the examiner noted "no restriction with employment," the Veteran was described as having a difficult time climbing up ladders and being unable to do heavy lifting "half the time any more." The examination revealed some tenderness over the lateral malleolus and slight swelling with some warmth. Dorsiflexion was from zero to 10 degrees without pain and to 15 degrees with pain. Plantar flexion was from zero to 20 degrees without pain and to 35 degrees with pain. Repetitive dorsiflexion and plantar flexion showed no change in motion, although there were increased pains. X-rays revealed narrowing of the medial joint compartment that could represent osteoarthritis, and the diagnosis was residuals of a right ankle fracture with decreased range of motion. During his November 2011 hearing, the Veteran reported right ankle pain and the wearing of a brace. He also described frequent falls. In this case, the Board finds that the Veteran's limitation of motion of the right ankle is much more aptly described as moderate than as marked in degree. While the August 2008 VA examination appeared to indicate limited dorsiflexion, plantar flexion was nearly full (40 degrees), and pain was noted only on extremes of motion. Conversely, the April 2011 VA examination revealed pain before the extremes of motion, but with dorsiflexion to the normal 20 degrees and 35 degrees of plantar flexion. This combination of range of motion findings and pain-related symptoms is commensurate to moderate limitation of motion of the ankle, but not more. The Board also notes that there is no evidence of ankylosis (Diagnostic Code 5270 and 5272), malunion of os calcis or astragalus (Diagnostic Code 5273), or astragalectomy (Diagnostic Code 5274). The Board is aware of the Veteran's subjective complaints of pain and instability, but even accepting his contentions the applicable diagnostic criteria do not allow for a higher rating based on those symptoms alone. Rather, the evidence does not support an evaluation in excess of 10 percent for the Veteran's right ankle disability, and his claim for that benefit must be denied. 38 C.F.R. § 4.7. V. Additional rating considerations With regard to each of the cited service-connected disabilities, the Board finds that there is no basis for a "staged" rating pursuant to Hart. Rather, the symptomatology shown upon examination during the pendency of the appeal has been essentially consistent and fully contemplated by the assigned disability ratings. The Board also has considered whether the Veteran is entitled to higher ratings on an extra-schedular basis. An extra-schedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the disability picture requires the assignment of an extra-schedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for right knee and right ankle disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. His primary symptoms are pain and, with the right knee, instability, and the assigned evaluations (including the two separate right knee evaluations) fully reflect that. There is no indication of an unusual level of interference with employment due to these disabilities, and there have been no hospitalizations during the pendency of this appeal. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an evaluation in excess of 10 percent for residuals of a fracture of the right knee, encompassing instability, is denied. A separate 10 percent evaluation for arthritis of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent for residuals of a fracture of the right ankle is denied. REMAND During his November 2011 hearing, the Veteran reported being self-employed but "not really working that much now...no one else will hire me," and his representative raised the possibility of a TDIU claim. In addition to the right knee and right ankle disorders described above, the Veteran is service connected for generalized chronic and subacute dermatophytosis, type II diabetes mellitus, neuropathy of the upper and lower extremities, peripheral neuropathy of the right and left hands, diabetic retinopathy, and impotency, but his April 2011 VA examination did not address the effects of these disabilities on his ability to secure and follow a substantially gainful occupation, as to more marginal and part-time self-employment. 38 C.F.R. § 4.16. Given these concerns, a further VA examination addressing the underlying TDIU question is "necessary" under 38 C.F.R. § 3.159(c)(4) (2013). Accordingly, the case is REMANDED for the following action: 1. The Veteran must be furnished with a 38 C.F.R. § 3.159(b) letter as to the TDIU claim and give a reasonable period of time to respond. 2. After completing any development necessitated by the Veteran's response to the aforementioned 38 C.F.R. § 3.159(b) letter, he must be afforded a VA medical examination, with an examiner who has reviewed the entire claims file (including Virtual VA and VBMS records). This examiner must interview the Veteran, conduct all testing deemed necessary, and provide an opinion as to whether the Veteran's service-connected disabilities (right knee disorders (arthritis and instability), right ankle disorder, generalized chronic and subacute dermatophytosis, type II diabetes mellitus, neuropathy of the upper and lower extremities, peripheral neuropathy of the right and left hands, diabetic retinopathy, and impotency) render him unable secure or follow a substantially gainful occupation. All opinions must be supported by a complete rationale in a typewritten report. 3. Then, the claim of entitlement to TDIU must be readjudicated. If the determination remains unfavorable, the Veteran and his representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs