Citation Nr: 1340255 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 04-14 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for total left knee replacement, status post internal derangement of the left knee, for the period beginning on September 1, 2009. 2. Entitlement to total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from August 1986 to November 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for arthritis of the left knee and assigned a 10 percent rating, effective November 22, 2002. Thereafter, in a January 2005 rating decision, the RO rephrased the issue as status post internal derangement of the left knee, assigning a 20 percent rating from May 26, 2004. In a March 2005 rating decision, the RO revised the effective date for the 20 percent rating for internal derangement of the left knee to May 18, 2004, and granted a separate 10 percent rating for arthritis of the left knee effective May 18, 2004. In an August 2008 rating decision, the RO again recharacterized the issue as total left knee replacement, status post internal derangement of the left knee, assigning a total temporary 100 percent rating effective July 22, 2008 through August 31, 2009, and a 30 percent rating beginning on September 1, 2009. In a January 2010 rating decision, the RO discontinued the separate 10 percent rating for arthritis of the left knee effective July 22, 2008. In a March 2010 rating decision, the RO revised the effective date for discontinuing the separate 10 percent rating for arthritis of the left knee to June 1, 2010. In August 2005, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In October 2005, the Board remanded this case for further evidentiary development. Thereafter, the case was again before the Board in May 2009, December 2010, June 2012, and May 2013. In the May 2009 decision, the Board denied an initial disability rating in excess of 10 percent for the Veteran's left knee disability for the period from November 22, 2002 through May 17, 2004. In the May 2013 decision, the Board denied increased ratings for internal derangement of the left knee from May 18, 2004 through July 21, 2008; and arthritis of the left knee. The Board also found that a claim for TDIU should be adjudicated in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the TDIU issue as well as the issue of entitlement to an initial disability rating in excess of 30 percent for total left knee replacement, status post internal derangement of the left knee, for the period beginning on September 1, 2009 for further development and consideration. FINDINGS OF FACT 1. The Veteran failed to respond to a May 2013 request for information to permit VA to request relevant treatment records and to complete a VA Form 21-2680. 2. For the period beginning on September 1, 2009, the evidence is not sufficient to establish that the Veteran's left knee replacement results in severe painful motion or weakness, or limitation of extension to at least 30 degrees. 3. The most probative evidence of record does not demonstrate that the Veteran's service-connected left knee disability precludes him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for status post left total knee replacement for the period beginning on September 1, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. VA has obtained service treatment records, assisted the appellant in obtaining post service medical evidence, afforded the appellant physical examinations with medical opinions, and afforded the appellant the opportunity to give testimony before the Board. All available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; the appellant has not contended otherwise. The Board remanded this claim multiple times. The Veteran was afforded examinations regarding the nature and severity of his left knee disabilities. Ongoing treatment records and Social Security Administration (SSA) disability records were obtained. In its May 2013 decision, the Board remanded the claim for an increased rating for the left knee disability for the period beginning on September 1, 2009, to request that the Veteran complete medical request forms to obtain additional pertinent medical records. The Board also requested that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. The RO sent the Veteran these forms later that month. However, the Veteran did not respond to this correspondence. Without the Veteran's cooperation, VA cannot obtain the evidence necessary to ascertain the current severity of her disability and its effects on her employability. While VA has a duty to assist the Veteran in substantiating a claim, that duty is not a one-way street. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying the nature and severity of the Veteran's left knee disability, and inquired as to the Veteran's treatment history. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that no further action pursuant to Bryant is necessary and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by reporting to examinations and testifying at a hearing. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his service-connected disability should be rated more than 30 percent disabling, as the symptoms and manifestations of the disability from which he suffers have increased in severity and has rendered him unemployable. Increased Rating Status Post Left Total Knee Replacement for the Period Beginning on September 1, 2009 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2013); see also 38 C.F.R. §§ 4.45, 4.59 (2013). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Veteran's status post left total knee replacement is rated 30 percent disabling under Diagnostic Code 5055 for knee replacement. Under this code, a 100 percent disability rating is assigned for one year following implantation of the prosthesis. With chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is assigned. With intermediate degrees of residual weakness, pain, or limitation of motion, rate by analogy to Diagnostic Codes 5256, 5261, or 5262. The minimum rating is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Under Diagnostic Code 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent disability rating, to 30 degrees warrants a 40 percent disability rating, to 20 degrees warrants a 30 percent disability rating, to 15 degrees warrants a 20 percent disability rating, to 10 degrees warrants a 10 percent disability rating, and to 5 degrees warrants a noncompensable disability rating. Upon review of the evidence of record, the Veteran's range of motion for the period beginning on September 1, 2009, has consistently been found to reach at least a minimum of 120 degrees of flexion and, once lacked 10 degrees of extension. For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. Plate II, 38 C.F.R. § 4.71 (2013). For example, a VA examination in December 2008 following his knee replacement revealed flexion of the left knee to 110 degrees with pain, and 80 degrees without pain; and extension to 0 degrees with no objective evidence of painful motion. There was some laxity of the left knee ligaments. An X-ray study found the total left knee replacement in good position, and the alignment was appropriate. The diagnosis was osteoarthritis of the left knee. In January 2010, the Veteran reported he had been doing well with his knee replacement until he fell on his knee in October 2009. It was reported that his left knee became septic and he was moved to a rehabilitation facility because the left knee was too painful to walk on. Range of motion in January 2010 was 0 to 130 degrees. The left knee was warm with mild effusion. There was slight instability, and pain along the medial aspect of the left knee. An X-ray study noted that the Veteran's left knee prosthesis appeared well seated. An August 2010 VA orthopedic note indicated that the Veteran has had four strokes in the past. The left knee was aching inside the joint. He reported the left knee pain was getting worse over time. However, left knee extension was -10 degrees and flexion was 120 degrees. There was no erythema, swelling, or effusion. The left knee was nontender to palpation. A VA examination conducted in June 2012 and an addendum dated in December 2012 are of record. Flexion of the left knee was 120 degrees with no objective evidence of painful motion and extension was 0 degrees with no objective evidence of painful motion. The record reveals the Veteran suffered an intercurrent fall in October 2009 following his 2008 knee replacement surgery and also suffered CVAs which have resulted in significant impairments and resulted in him being wheelchair bound. The Veteran was asked in May 2013 to provide release forms so that his treatment related to his fall and his treatment at the rehabilitation facility/nursing home could be obtained. As an intercurrent injury cannot form the basis for an award of a higher rating, these records are crucial to the claim. Indeed, the Veteran noted to VA treatment providers that he was doing well with his knee replacement until his fall, when significant pain began. In short, the Veteran's range of motion of the left knee during the relevant period does not support a rating in excess of 10 percent at any time, and his complaints of significant knee pain did not begin until after his intercurrent fall. Because the Veteran has not responded to the request for information to permit treatment records from the fall and from his subject private treatment to be obtained, the Board finds the record insufficient to support a rating higher than the 30 percent rating presently assigned to the left knee replacement. Wood, 1 Vet. App. at 193 ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. As noted above, he has not responded to request for additional information that could help substantiate his claim. His disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. TDIU 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran does not meet the minimum percentage requirements set forth in 38 C.F.R. § 4.16(a) for award of a schedular TDIU. During the course of the claim, except during the period of a total rating following knee replacement surgery, the Veteran's service-connected left knee disability was rated as 40 percent disabling or less. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. Records from SSA note an examination in December 2002 revealed the Veteran's knee disability would cause limitations in squatting and having to avoid heights. On an examination in February 2003, the Veteran stated that he was unemployable due to left knee pain, left shoulder pain, and low back pain due to a motor vehicle accident in October 2001. He also noted that he injured his left knee and underwent surgery in service and that the October 2001 accident reinjured his left knee. He noted that the left knee pain caused difficulty walking. The examiner stated that the Veteran was unable to work due to weakness and inability to use his left arm. The examiner stated that the Veteran has been disabled as a mechanic and was encouraged to seek another line of work. Reports from March and April 2003 note the Veteran was unable to work due to inability to use the left arm and/or low back pain. A May 2004 decision of the SSA granted the Veteran disability insurance benefits - effective October 2001, due to degenerative disc disease of the lumbar spine. That decision noted that the Veteran was a high school graduate, and had worked as a mechanic and machinist. The June 2012 VA examination noted the Veteran has suffered multiple cerebral vascular accidents (CVAs). The examiner stated that due to these CVAs, he was wheelchair bound, required dwelling in an assisted living facility, and essentially non functional in any aspect. The evidence of record indicates the Veteran was deemed unemployable as of October 2001 due to back problems associated with a motor vehicle accident, and that his shoulder injury affected his job as a mechanic. With respect to his knee, the functional limitations were noted as causing limitations in squatting and having to avoid heights. Avoiding squatting and avoiding heights, while potentially limiting some job fields, does not limit employment in many other fields, including sedentary work. Presently, following his knee replacement, he was doing well until an intercurrent fall in October 2009; thereafter he has been at a rehabilitation facility, and is now wheelchair bound, lives in an assisted living facility, and is essentially non functional as a result of his strokes. Although the record reflects the Veteran has been deemed totally disabled by SSA, the evidence of record simply does not reflect the Veteran's knee disability, alone, has rendered him unable to obtain or maintain gainful employment. In consideration of the Veteran's symptoms as demonstrated on examination, and in consideration of the Veteran's educational and vocational background as demonstrated in SSA records, the Board does not find the Veteran's service-connected left knee disability, in and of itself, to be of such severity as to preclude gainful employment. The Board notes that the Veteran failed to fill out a TDIU application as requested in May 2013. While this is not fatal to his claim in and of itself, it may have contained additional evidence to demonstrate that his left knee disability alone rendered him unemployable. See Wood, supra. The record notes that the Veteran has a high school education, and there is no evidence of record that would be unable to perform work at the sedentary level solely as a result of his left knee disability. The Board finds that the Veteran's service-connected left knee disability, alone, does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. Accordingly, the criteria for TDIU are not met, referral for extra-schedular consideration is not required, and the claim is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the Veteran has failed to cooperate in the request for crucial evidence, the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to a disability rating in excess of 30 percent for status post left knee replacement for the period beginning on September 1, 2009, is denied. Entitlement to a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs