Citation Nr: 1342644	
Decision Date: 12/24/13    Archive Date: 12/31/13

DOCKET NO.  11-12 335	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for right knee pain secondary to advanced degenerative osteoarthritis of the right knee with instability.  

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Marine Corps League


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from September 1990 to April 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). 

The Board acknowledges that additional evidence has been received since the Veteran's prior adjudication; however, in an August 2013 statement the Veteran waived RO consideration of the evidence.  

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that a veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  Thus, the Board has amended the issues listed on the cover page.

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  For the period prior to April 28, 2012, the preponderance of the evidence shows that the Veteran's right knee manifested with no more than slight lateral instability and minimal to no limitation of motion. 

2.  For the period from April 28, 2012, the preponderance of the evidence shows that the Veteran's right knee disability was manifested by moderate instability and arthritis with noncompensable limitation of motion.  


CONCLUSIONS OF LAW

1.  Prior to April 28, 2012, the criteria for a rating in excess of 20 percent for right knee pain secondary to advanced degenerative osteoarthritis of the right knee with instability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2013).

2.  From April 28, 2012, the criteria for a rating in excess of 20 percent for right knee pain secondary to advanced degenerative osteoarthritis of the right knee with instability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013).

3.  From April 28, 2012, the criteria for a separate 10 percent rating for limitation of motion due to advanced degenerative osteoarthritis of the right knee have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5003, 5260, 5261 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

The record shows that a VCAA dated in February 2008 informed the Veteran of the information and evidence necessary to substantiate the claim for an increased rating.  The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  He was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  The case was last adjudicated in March 2011.  

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA treatment records, private treatment records, and VA examination reports.  No additional pertinent evidence has been identified by the Veteran.

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 submitting evidence and argument.  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).

Analysis 

The Veteran seeks an increased rating for his service-connected right knee disability.  This claim for an increased disability rating was submitted in October 2007.  

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).

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.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that 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.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

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).  

By way of history, service connection for anterior cruciate ligament (ACL) deficient right knee status post ACL reconstruction was established in a July 1995 rating decision.  A September 1996 rating decision increased the rating to 10 percent based on slight instability.  An October 2004 rating decision assigned an increased 20 percent rating, recharacterizing the disability as right knee pain secondary to advanced degenerative osteoarthritis of the right knee and increasing the rating to 20 percent rating based on additional functional impairment to include limited motion, even though the range of motion at that time was noncompensable.  In the rating decision on appeal, the disability is listed as right knee pain secondary to advanced degenerative osteoarthritis of the right knee with instability, evaluated under a hyphenated Diagnostic Code 5003-5257.

Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved.  When the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating.  38 C.F.R. § 4.71a.  

Under Diagnostic Code 5260, the limitation of flexion of the leg to 15 degrees warrants a 30 percent rating; limitation to 30 degrees warrants a 20 percent rating; limitation to 45 degrees warrants a 10 percent rating; and limitation to 60 degrees warrants a noncompensable (0 percent) rating.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, the limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable (0 percent) rating.  38 C.F.R. § 4.71a.

Normal range of motion for the knee is 0 degrees in extension and 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II.

Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)).  Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint.  VAOPGCPREC 
9-2004 (69 FR 59988 (2004)).

At the outset, the Board notes that the 20 percent rating assigned in the October 2004 decision essentially contemplated functional impairment resulting from both limitation of motion and instability.  

Upon review of the record, the Board finds that a higher rating in not warranted prior to April 28, 2012.  Although the Veteran does use a brace for his right knee, the Veteran's instability has been intermittent.  A May 2008 private record showed a grade I Lachman and grade I anterior drawer.  The examiner opined that the Veteran has mild instability.  He specifically noted that there is not enough instability to warrant reevaluation or surgical intervention.  In the September 2008 VA examination, the Veteran reported instability happening four times per month.  The examiner noted a grade 1 to 2 laxity of the ACL on testing of Lachman's and anterior drawer test.  The September 2010 VA examiner noted occasional giving out of the right knee.  Right knee examination showed negative McMurray, drawer, and Lachman tests.  The examiner specifically noted no evidence of instability.  Thus, during the period prior to April 28, 2012, moderate instability was not shown.

Additionally, during the period prior to April 28, 2012, the Board notes that the Veteran's range of motion findings at no point support a compensable disability rating.  A May 2008 private treatment record showed range of motion findings of flexion to 135 degrees and full extension.  The September 2008 VA examination showed range of motion findings of flexion to 140 degrees and extension to 0 degrees.  He noted no ankylosis.  Repetitive motion testing revealed no loss of motion due to pain, weakness, fatigue, instability, or lack of endurance.  In September 2010, the Veteran's range of motion was noted as 0 to 140 degrees, without any complaints of pain.  

Thus, prior to April 28, 2012, the findings regarding instability and range of motion at no time singularly or jointly warrant a rating in excess of 20 percent.  In other words, during the period prior to April 2012, even if arthritis and instability were rated separately, at worst each disability would be 10 percent disabling, for a combined rating of 20 percent.  During this period the Veteran was already receiving a 20 percent rating that contemplated both instability and limited/painful motion, and there is no benefit to amending the condition to rate the individual complaints separately during that period.  See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).

However, from April 28, 2012, the Board finds that rating instability and limitation of motion separately will result in a higher combined evaluation for the right knee.  Specifically, an April 28, 2012 private treatment record noted the Veteran reporting a feeling of occasional instability.  Lachman and pivot shift were positive on the right at least 2+ with soft endpoiont.  The knee was otherwise stable.  There was no posterior sag or posterior drawer.  Range of motion of the knees bilaterally was 0 to 135 degrees.  Similarly, the May 2013 VA examination findings suggest that the Veteran suffers from instability with a full 2+ anterior instability noted.  During this same examination, the Veteran was also noted to limitation of motion, albeit to a noncompensable level.  Thus, the Board finds that from April 28, 2012, the Veteran's instability is moderate in nature, supporting a 20 percent rating for that finding alone.  As he has arthritis with some limitation of motion, a separate 10 percent rating can also be assigned under Diagnostic Code 5003 for that limitation of motion from April 28, 2012.

Higher ratings are not warranted during this period as severe instability or subluxation was not shown on examination.  Indeed, both the private examiner and the VA examiner noted the Veteran's right knee was stable in some motions, and unstable in others.  Thus, an even higher rating under Diagnostic Code 5257 is not warranted.  Moreover, the Veteran's motion on the April 2012 private report was almost normal, and on the May 2013 examination was 105 degrees of flexion with pain at 90 degrees and extension to 5 degrees with pain at 5 degrees.  The Veteran is not shown during this period to have limitation of flexion or extension that rises to even a noncompensable level under Diagnostic Codes 5260 and 5261.  

The Board notes that the VA examiners specifically addressed the criteria set 
forth in DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Veteran's range of motion of the right knee was not found to be additionally limited by increased pain, incoordination, fatigue, weakness, or lack of endurance on repetitive use, beyond the measurements taken into consideration in rating the disability.  38 C.F.R. §§ 4.40, 4.45.  The examiners noted pain during the evaluations, but addressed 
any additional limitation due to pain.  Even considering the factors set forth in DeLuca, the Veteran's limitation of motion did not rise to the level of a separate compensable disability rating as any pain, incoordination, fatigue, weakness, 
and lack of endurance did not result in any additional limitation of motion.  Accordingly, higher or separate ratings under these codes are not warranted, even considering complaints of pain and functional impairment.  

In summary, the Board finds that for the period prior to April 28, 2012, a rating in excess of 20 percent is not warranted for his right knee disability.  From April 28, 2012, the Board concludes that his instability alone supports a 20 percent rating, but no higher, and that his limitation of motion should be separately rated from that date with a 10 percent rating for right knee limitation of motion pursuant to Diagnostic Code 5003.  

The Board has also considered whether the Veteran's right knee 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 an extra-schedular rating 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, with consideration of 38 C.F.R. §§ 4.40, 4.45, and 4.59, reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, 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. 


ORDER

For the period prior to April 28, 2012, entitlement to a disability rating in excess of 20 percent for right knee pain secondary to advanced degenerative osteoarthritis with instability of the right knee is denied.

For the period from April 28, 2012, an evaluation in excess of 20 percent for right knee pain secondary to advanced degenerative osteoarthritis with instability is denied. 

For the period from April 28, 2012, a separate 10 percent rating for limitation of motion of the right knee associated with advanced degenerative osteoarthritis is granted, subject to the rules and regulations governing the payment of VA monetary benefits. 


REMAND

In the present case, the Veteran and his representative have asserted that the Veteran is unable to work due, at least in part, to his service-connected disability.  In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  

The Board notes that the Veteran has not been provided with VCAA notice of the requirements for a TDIU claim.  Such should be accomplished on remand.  Additionally, the Veteran should be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.

Accordingly, the case is REMANDED for the following action:
1.  Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU.  The Veteran should be asked to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.

2.  After the above has been completed to the extent possible, the RO/AMC should adjudicate the claim for a TDIU.  If additional development is necessary, such as obtaining a medical opinion as to whether the Veteran is unemployable due solely to his right knee disability, such should be accomplished.  If the claim is denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC), which includes the relevant laws governing claims for TDIU, and be given a reasonable opportunity to respond.  Thereafter, the issue should be returned to the Board if in order.

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. 2013).


______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs