Citation Nr: 1413973 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 11-04 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for service connected left knee post-operative patellar subluxation, prior to May 11, 2012. 2. Entitlement to an evaluation in excess of 10 percent for service connected left knee post-operative patellar subluxation as of May 11, 2012. 3. Entitlement to a separate compensable evaluation for left knee disability with limitation of motion due to pain, prior to May 11, 2012. 4. Entitlement to a separate compensable evaluation for left knee disability with limitation of motion due to pain as of May 11, 2012. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Samuelson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which continued a 10 percent disability rating for the Veteran's left knee post-operative patellar subluxation. In May 2012, the Veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folder. The Veteran maintains that his service-connected disabilities have caused him to miss work or leave work early. Therefore, the Board finds that the record has raised a claim for a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that, in addition to reviewing the Veteran's paper claims folder, it has surveyed and considered the contents of his Virtual VA file. The additional evidence contained therein is considered part of the constructive record under VA's current guidelines. The issues of entitlement to an evaluation in excess of 20 percent for service connected left knee post-operative patellar subluxation as of May 11, 2012, and in excess of 10 percent for left knee disability with limitation of motion due to pain as of May 11, 2012, and entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to May 11, 2012, the Veteran's left knee lateral instability was characterized as moderate. 2. Prior to May 11, 2012, the Veteran's left knee disability was productive of passive flexion limited to no less than 120 degrees and incomplete extension, without evidence of ankylosis, dislocated or removed cartilage, impairment of tibia or fibula, or genu recuvatum. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability evaluation, and no higher, for service connected post-operative patellar subluxation of the left knee, prior to May 11, 2012, have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.321, 4.71a Diagnostic Code (DC) 5257 (2013). 2. The criteria for the assignment of a separate 10 percent disability evaluation for service connected left knee disability with limitation of motion due to pain, and no higher, have been met, prior to May 11, 2012. 38 U.S.C.A. § 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At his May 2012 Board hearing, the Veteran indicated that he was seeking a 20 percent rating for his left knee instability and a 10 percent rating for his limitation of motion of the left knee for the period prior to May 12, 2002, and that those evaluations would satisfy that portion of his appeal. Because the Veteran limited his appeal to 20 and 10 percent ratings for his left knee instability and left knee limitation of motion prior to May 12, 2012, see AB v. Brown, 6 Vet. App. 35, 38 (1993), and since the Board finds that the evidence supports entitlement to those ratings, no discussion of VA's duty to notify or assist is necessary as he is being awarded a complete grant of the benefit sought on appeal. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the United States Court of Appeals for Veterans Claims (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, 1 Vet. App. at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F. 3d at 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board notes that 38 C.F.R. § 4.71a, Diagnostic Code 5003 establishes, essentially, three methods of evaluating degenerative arthritis that is established by X-rays: (1) when there is a compensable degree of limitation of motion, (2) when there is a noncompensable degree of limitation of motion, and (3) when there is no limitation of motion. Generally, when documented by X-rays, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, that is established by X-ray, is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The Burton Court further held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Pursuant to Diagnostic Code 5260, under which limitation of leg flexion is evaluated, the following evaluations are assignable: for flexion limited to 60 degrees, 0 percent; for flexion limited to 45 degrees, 10 percent; for flexion limited to 30 degrees, 20 percent; and for flexion limited to 15 degrees, 30 percent. Pursuant to Diagnostic Code 5261, under which limitation of leg extension is evaluated, the following evaluations are assignable: for extension limited to 5 degrees, 0 percent; for extension limited to 10 degrees, 10 percent; for extension limited to 15 degrees, 20 percent; for extension limited to 20 degrees, 30 percent; for extension limited to 30 degrees, 40 percent; for extension limited to 45 degrees, 50 percent. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The knee is considered a major joint. 38 C.F.R. § 4.45(f) (2013). A. Background The Veteran is service-connected for post-operative patellar subluxation of the left knee, which is currently rated 10 percent disabling under 38 C.F.R. § 4.71a, DC 5257. The Veteran contends that his disability is more severe than the currently assigned rating and that he is entitled to a higher rating. At his April 2009 VA examination, the Veteran reported pain constantly and daily, and flare-ups. The examiner noted some discomfort to palpitation, the left lower extremity was a half inch shorter than the right one, generalized tenderness of the knee, and range of motion in the left knee was 0 degrees of extension to 130 degrees of flexion. He further noted x-rays of the Veteran's knees taken in January 2009 showed that he had reasonable joint space about the knees and some degenerative change. The claims file includes relevant VA treatment records dated during the appeal period. Such records show that in September 2008, the Veteran reported falling two times per week because his knees gave out. The left knee examination was limited by the Veteran's extreme sensitivity to any movement or touch. In December 2008, the Veteran had passive flexion to 120 degrees. January 2009 VA treatment records note pain with hyperextension about his lower extremities. An August 2009 MRI of his left knee revealed a tear in the posterior horn of the medial meniscus extending into the root. A left knee arthroscopy was recommended in September 2009, and the VA treatment records noted pain with end range extension and breakaway weakness with knee extension bilaterally. In November 2009, the VA treatment records noted ongoing pain in his knees, knees gave out on him occasionally, and limited range of motion. In August 2010, the Veteran reported instability, his knee giving way, night pain, inability to straighten his knee, and pain going upstairs or hills. Private treatment records from Dr. D.D. in October 2009 noted the Veteran has been seen at the Veterans Administration for his knees and x-rays revealed mild degeneration and an MRI of his knees have been done revealing internal derangement and surgery has been suggested for both knees. The Veteran also reported that rheumatoid arthritis was considered. Physical examination revealed incomplete extension, left knee with flexion to 135+. Dr. D.D. opined that the Veteran should probably proceed with left knee surgery. In a December 2009 private treatment records from Bay Family Medical Group, the Veteran reported that he loses balance secondary to knee pain and has fallen. At the hearing in May 2012, the Veteran competently and credibly reported instability, inability to squat, and numbness when getting out of the shower or getting up out of bed. He opined that without a knee brace, he would fall approximately once every other month. B. Recurrent subluxation or lateral instability prior to May 11, 2012 Pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability warrants a 10 percent evaluation. A 20 percent rating requires moderate instability, and a 30 percent evaluation requires severe instability. After a careful review of the lay and medical evidence, the Board concludes that the evidence most closely approximates a finding that the Veteran's left knee instability results in moderate lateral instability and a 20 percent evaluation for left knee instability is thus warranted. In reaching this determination, the Board considered VA and private treatment records showing reports of instability and falling due to his knee giving out and the Veteran's use of patellar stabilizing braces. The Board also considered the Veteran's testimony at the May 2012 Board hearing, during which he stated he experienced instability, was unable to squat, and if he did not wear a knee brace, he would likely fall once every month or once every other month. The Board further finds, however, that the preponderance of the evidence is against a determination that the Veteran's right knee instability more nearly approximates severe residual subluxation or lateral instability. As such, the Board finds that entitlement to a separate evaluation in excess of 20 percent instability is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49. 53 (1990). C. Limitation of motion due to pain prior to May 11, 2012 Following a review of the relevant evidence of record, including the Veteran's lay statements, VA treatment records, the April 2009 VA examination report, and the Veteran's testimony at the Board hearing, the Board concludes that the Veteran's left knee disability warrants a separate 10 percent rating for limitation of motion prior to the hearing on May 11, 2012. A review of the evidence shows that, during the course of the appeal, the Veteran's left knee produced limited range of motion. The Veteran's passive flexion was 120 degrees in December 2008, flexion was 130 degrees in April 2009, and flexion was to 135+ in October 2009. Incomplete extension was noted in October 2009. The Veteran showed pain with end range extension and breakaway weakness with knee extension bilaterally. These limitations are not of a level compensable under Diagnostic Code 5260, which requires that flexion be limited to 45 degrees or Diagnostic Code 5261, which requires that extension be limited to 10 degrees. However, in light of the Veteran's documented pain and functional impairment, as well as the mandate of 38 C.F.R. § 4.59 and the Court's decision in Burton, as well as VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (1997), and VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (2004), the criteria for a separate 10 percent rating for limitation of motion has been shown. Finally, the Board has considered whether it may be appropriate to rate the Veteran's left knee disability under other DCs. DCs 5256, 5258 and 5259 provide ratings for ankylosis, dislocated cartilage, and removed cartilage, respectively. All evidence shows that the Veteran suffers none of these symptoms. DCs 5262 and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively. All of the medical evidence shows no such impairment. Therefore, a higher rating is not available under these DCs. D. Other considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's left knee disability, such as the Veteran's service-connected left knee disability is productive of pain, functional impairment, and instability, manifestations that are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's left knee disability and referral for consideration of extraschedular rating is not warranted. ORDER For the period prior to May 12, 2012, a rating of 20 percent, but no higher, for post-operative patellar subluxation as of the left knee is granted, subject to the applicable criteria governing the payment of monetary benefits. For the period prior to May 12, 2012, a separate rating of 10 percent, but no higher, for left knee disability with limitation of motion due to pain is granted, subject to the applicable criteria governing the payment of monetary benefits. REMAND As to the issues of entitlement to an evaluation in excess of 20 percent for service connected left knee post-operative patellar subluxation as of May 12, 2012, and entitlement to a separate evaluation in excess of 10 percent for left knee disability with limitation of motion due to pain as of May 12, 2012, the Board finds that a new examination is required. The Veteran was last examined by VA for his left knee disability in April 2009. At his May 2012 Board hearing, the Veteran stated his disability has worsened. In light of the stale VA examination report and the Veteran's statement indicating that his left knee disability has increased in severity since the last VA examination, a contemporaneous VA examination is needed to properly assess the current severity of the Veteran's left knee disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As explained above, the record raises a claim for entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that the TDIU issue is not fully developed for appellate review. Specifically, the Board notes that the Veteran has not been provided with notice of the laws and regulations governing TDIU or an examination to obtain an opinion as to whether his service-connected disabilities prevent him from working. Therefore, the Board finds that a remand for such development is required. On remand, the RO should ask the Veteran to identify any additional, pertinent medical treatment that he has received for his left knee disability and take appropriate measures to obtain those records. Any additional, pertinent VA or private treatment records should be associated with the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The RO should also ask the Veteran to submit any additional, pertinent lay statements relating to his claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to his left knee disability. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. Any negative response should be in writing and associated with the claims file. 2. Provide the Veteran with appropriate notice consistent with the Veterans Claims Assistance Act of 2000 (VCAA) on the issue of entitlement to a TDIU due to service-connected disabilities. 3. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his left knee symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After all outstanding records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left knee disability. The claims file should be made available to and reviewed by the examiner, and the examiner must record the Veteran's complaints of pain and/or instability. All appropriate tests and studies should be conducted. The examiner should address the following: a. Indicate whether any of the following are present and to what degree: ankylosis (favorable or unfavorable); recurrent subluxation; lateral instability; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; symptomatic removal of semilunar cartilage; limitation of leg flexion; limitation of leg extension; impairment of tibia and fibula; and genu recurvatum. b. Discuss functional impairment of the knee, addressing weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. Any functional impairment should be expressed in degrees of limitation of motion, i.e., the extent of the Veteran's pain-free motion. 5. Then readjudicate the appeal. In doing so, the RO must specifically consider whether the Veteran's left knee claim should be referred for extraschedular consideration. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental SOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs