Citation Nr: 1339614 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 06-17 135 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee. 2.. Entitlement to a rating in excess of 20 percent for the service-connected degenerative joint disease of the right knee prior to January 9, 2012 and a 30 percent rating from March 1, 2013 for a total right knee arthroplasty (previously rated as degenerative joint disease of the right knee). REPRESENTATION Appellant represented by: David L. Huffman, Attorney ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION In April 2010, the Veteran petitioned to reopen the previously denied claim of service connection for a heart disorder. Thus the issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers the matter to the AOJ for appropriate action. The Veteran served on active duty from August 1971 to February 1973. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the RO. The Veteran requested a hearing with the Board to be held at the RO; he was scheduled for a hearing in March 2010 and was provided with notice in February 2010. The Veteran failed to appear for his scheduled hearing. The Veteran testified at a hearing held before a Decision Review Officer at the RO in November 2008. A transcript of the hearing is contained in the claims file In September 2011, the Board remanded the issues for further development. The RO in a rating decision in August 2013 assigned a 100 percent rating from January 9, 2012 to February 28, 2013 due to right knee replacement surgery and assigned a 30 percent rating beginning on March 1, 2013. Thus, this issue has been characterized as reflected on the title page. The RO in an August 2013 rating decision granted service connection for a psychiatric disorder and noted that the determination was a full grant of the benefit sought. Thus this issue is no longer in appellate status. Under certain circumstances, a claim for an increased rating for a service-connected disability includes a claim for total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the instant case, the RO in a rating decision in July 2009 assigned a TDIU rating and thus the issue is not in appellate status. The issue of higher ratings for the service-connected right knee disability is being remanded to the RO. FINDING OF FACT During the period of the appeal, the service-connected left knee disability picture is shown to manifested by flexion limited to 85 degrees with pain and extension performed to 0 degrees with pain; neither recurrent subluxation nor lateral instability is demonstrated. CONCLUSION OF LAW The criteria for the assignment of an initial rating higher than 10 percent for the service-connected degenerative joint disease of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5257, 5010-5260 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided a pre-adjudication VCAA notice by letter, dated in November 2004. Where, as here, service connection has been granted and an initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability, does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. The service treatment records, post-service treatment records, records from the Social Security Administration, and lay statements have been associated with the record. Additionally, the Veteran was afforded VA examinations in February 2005, December 2008 and June 2012. The Board finds the service and post-service treatment records and the VA examinations are adequate for rating purposes. In a duty to assist letter in October 2011, the RO asked that the Veteran submit written authorization for VA to obtain any outstanding records, however the Veteran did not reply. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed during the relevant time period and a staged rating is unwarranted. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, the VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. See DeLuca 8 Vet. App. at 206. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. During the period of the appeal, the service-connected degenerative joint disease of the left knee has been rated under Diagnostic Codes 5010-5260. In evaluating the Veteran's current level of disability, the Board will consider all applicable Diagnostic Codes. Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by x-ray findings be rated as arthritis degenerative. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is some limitation of motion of the specific joint or joints involved that is noncompensable (no percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. And limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. In VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a knee disability is evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a no percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. The VA General Counsel also has held if the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004). Evidence and Analysis The RO has assigned a 10 percent evaluation based upon Diagnostic Codes 5010-5260. The 10 percent evaluation contemplates pain on motion. 38 C.F.R. § 4.59. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees. A separate evaluation may be assigned for compensable limitation of extension if it is limited at least to 10 degrees. Here, it is clear that the Veteran has pain on motion. However, neither the lay nor medical evidence establishes a disability picture that is manifested by flexion limited to 30 degrees or extension limited to 10 degrees; therefore, neither an initial higher rating based on limitation of flexion nor a separate compensable rating based on limitation of extension is assignable. On VA examination in February 2005, the Veteran complained of having a constant, dull knee pain, stiffness when walking, some swelling, fatigue, and lack of endurance. Extension was performed to 0 degrees and unchanged with repetition. Flexion was performed to 110 degrees and was reduced to 100 degrees with repetition. There was discomfort with repetition of motion. Accompanying x-rays studies showed degenerative changes. VA progress notes in March 2007, June 2007, and September 2007 showed the range of motion in the left knee was performed from 0 to 110 degrees. On VA examination in December 2008, the Veteran complained of having pain, stiffness, weakness, incoordination, and weekly flare-ups that were precipitated by walking and climbing stairs. He reported being unable to stand for more than a few minutes or walk more than a few yards. The range of motion was noted to be from 0 to 85 degrees with pain. There was pain following repetitive motion. On VA examination in June 2012, the Veteran reported that flare-ups did not impact the function of the knee. Flexion was performed to 90 degrees with pain at 85 degrees. Extension was 0 degrees with no pain. The Veteran was able to perform repetitive-use testing with 3 repetitions. On repetitive testing, flexion was performed to 90 degrees and extension was performed to 0 degrees. Functional impairment upon repetitive testing was pain and less movement than normal. Muscle strength was normal. The examiner stated that the Veteran was capable of walking 200 yards on a good day. Thus, during the appeal, flexion of the left knee was not limited to less than 85 degrees even with consideration of pain. Hence, these findings do not show that flexion is limited to 30 degrees, to include consideration of any additional functional loss due to pain, pain on movement, swelling, atrophy, fatigue, weakness, incoordination, to include during flare-ups and with repeated use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, on this record, the Veteran is not entitled to a higher rating under Diagnostic Code 5260. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). As for extension, the left knee during the period had extension to 0 degrees with pain. As extension of the left knee is not shown to be restricted to 10 degrees even with consideration of pain, a separate rating for left knee extension pursuant to VAOPGCPREC 9-2004 is not warranted. The X-ray studies showed degenerative joint disease. As the Veteran already is in receipt of a rating for painful limited motion under Diagnostic Code 5260, assigning a separate 10 percent rating for limitation of motion under Diagnostic Code 5003 for degenerative arthritis would constitute pyramiding as he would be compensated twice for the same symptomatology. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition). While the Veteran has complained of instability, the weight of the evidence establishes that the criteria for a separate rating under Diagnostic 5257 are not assignable as the objective findings do not establish the presence of recurrent subluxation or lateral instability. On VA examination in February 2005, the Veteran complained of having instability and giving way, but denied recurrent subluxation. The examination showed that the knee joint was stable. During the hearing in November 2008, the Veteran reported having stability problems and wearing a brace and using a cane. On VA examination in December 2008, he complained of giving way, but denied episodes of subluxation. On examination, there was no instability, patellar abnormality or meniscus abnormality. On VA examination in June 2012, joint stability tests were normal. The examiner reported that there was no recurrent subluxation and noted that there was no x-ray evidence of patellar subluxation. The Board finds that the medical evidence outweighs the Veteran's assertions of experiencing instability. On VA examination in February 2005, the Veteran denied having locking or dislocation, and the examiner noted that there were no surgeries performed on the left knee. On VA examination in December 2008, he again denied locking episodes, and the examiner determined that there was no ankylosis. On VA examination in June 2012, the examiner reported that there was no dislocation or meniscal condition or surgical procedures for a meniscal condition. There also is no lay or medical evidence showing ankylosis, tibia and fibula involvement, genu recurvatum, dislocated semilunar cartilage, or removal of semilunar cartilage, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not applicable. The Board also has considered the Veteran's lay statements that describe his left knee pain and discomfort. The Veteran is certainly competent to describe his observations and the Board finds his statements are credible. In this case, however, the Board finds the medical findings by skilled professionals are more persuasive for the purpose of evaluating the service-connected left knee disability. In essence, the lay statements, while credible, do not provide a basis for a higher evaluation or an additional compensable rating. Based on the entire record, the service-connected degenerative joint disease of the service-connected left knee disability does not meet the criteria for an initial rating higher than 10 percent at any time during the period of the appeal. As the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the disability picture referable to the service-connected degenerative joint disease of the left knee manifested by symptoms of pain and limited motion. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER An initial rating in excess of 10 percent for the service-connected degenerative joint disease of the left knee is denied. REMAND On VA examination in June 2012, the examiner reported that the Veteran underwent a total right knee joint replacement in February 2012 and the residuals included intermediate degrees of residual weakness, pain or limitation of motion. Subsequently in a rating decision in August 2013, the RO assigned an evaluation of 100 percent based on the Veteran having right knee total arthroplasty effective on January 9, 2012 and then assigned a 30 percent evaluation beginning on March 1, 2013 under Diagnostic Code 5055. However, since the 100 percent was still in effect at that time of the June 2012 VA examination and continued through March 1, 2013, an examination should be scheduled until the Veteran fully recovered from the knee replacement. Hence, the Veteran should be afforded another examination to determine the current severity of the service-connected right knee disability manifested by a total joint replacement. Accordingly, the case is REMANDED for the following action: 1. The RO should have the Veteran scheduled for a VA orthopedic examination to ascertain the severity of the service-connected right knee disability manifested by a total left knee replacement. The examiner should report whether there is evidence of severe painful motion, severe weakness in the affected extremity, pain, or limitation of motion. The passive and active range of motion in the right knee in degrees and whether there is ankylosis should be noted. 2. After completing all indicated development to the extent possible, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs