Citation Nr: 1509414 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 13-07 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial increased schedular rating for right knee strain status post-surgery times two and ACL reconstruction, currently evaluated as 10 percent disabling. 2. Entitlement to an initial increased schedular rating for left knee strain status post surgeries for plica syndrome, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to December 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Salt Lake City, Utah, Department of Veteran Affairs (VA) Regional Office (RO). September and October 2014 rating decisions granted the Veteran temporary evaluations of 100 percent for her right and left knee disabilities. For her right knee, the Veteran received this evaluation from April 25, 2014, to June 30, 2014, and then July 11, 2014, to August 31, 2014, inasmuch as she had right knee surgery in April and July 2014. The Veteran received a temporary 100 percent evaluation for her left knee from July 25, 2014, to August 31, 2014, following surgery in July 2014. However, given these surgeries, the Board is bifurcating the period of appeal into two stages, for the periods prior to and beginning September 1, 2014, inasmuch as it needs to be determined whether the Veteran's knee disabilities have improved following surgery. The Veteran also testified before the Board that she is unemployable. Therefore, the issues of entitlement to bilateral knee ratings in excess of 10 percent for the period beginning September 1, 2014, and entitlement to a to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). The Veteran had a travel board hearing before the undersigned Veterans Law Judge on February 28, 2014. A transcript has been associated with her claims file. FINDINGS OF FACT 1. Right knee strain status post-surgery times two and ACL reconstruction has been characterized by pain; limitation of extension to 0 degrees, and limitation of flexion to 100 degrees with meniscal tearing and frequent episodes of locking and pain. 2. Left knee strain status post surgeries for plica syndrome has been characterized by pain; limitation of extension to 0 degrees, and limitation of flexion to 100 degrees with meniscal tearing and frequent episodes of locking and pain. CONCLUSIONS OF LAW 1. An initial rating of 20 percent, but no higher, for right knee strain status post-surgery times two and ACL reconstruction are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.71a, DC 5258 (2014). 4. An initial rating of 20 percent, but no higher, for left knee strain status post surgeries for plica syndrome are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.71a, DC 5258 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). Here, service connection has been granted and an initial disability rating and effective date have been assigned. In such cases, the intended purpose of the VCAA notice has been fulfilled and no additional notice is required as to downstream issues, including the disability evaluation. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The RO has obtained private treatment records and records of VA treatment. The Veteran was also afforded VA examinations for her disabilities. The VA examination reports are adequate for the purposes of adjudication, as they include all necessary testing, indicate a full examination of the Veteran and review of her claims file, and provide information adequate to evaluate the claims. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, neither the Veteran nor her representative assert that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board thus finds that she is not prejudiced and the Board can adjudicate the claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the VCAA requirements. II. Analysis During the periods on appeal, the Veteran is seeking ratings in excess of ten percent for her knee disabilities. Both knees are currently rated under diagnostic codes 5260-5019, limitation of flexion of the leg and bursitis. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). As stated above, the Veteran currently has a bilateral 10 percent rating under DC 5260-5019, which allows for bursitis to be rated on limitation of motion as arthritis. She receives a 10 percent rating for painful or limited motion of a major joint. See DC 5003. She is not entitled to a higher rating under this code, inasmuch as the knee is a single joint, and a 20 percent rating requires involvement of two or more major joints. Normal range of motion for the knee is defined as follows: flexion to 140 degrees and extension to 0 degrees. See 38 C.F.R. § 4.71, Plate II (2013). Under DC 5260, limitation of flexion of the leg provides a non-compensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Id. A veteran may receive separate ratings for limitations in both flexion and extension. See VAOPGCPREC 9-2004. Further, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, is rated as 20 percent disabling. 20 percent is the only rating available under this diagnostic code At her first examination in December 2010, flexion was measured at 135 degrees in both knees. Extension was measured at zero degrees. Repetitive motion increased her pain. Both joints were stable. There was medial and lateral joint line tenderness as well as bilateral and posterior tenderness. The Veteran complained that the knees popped, locked and gave way. The Veteran's next examination was on November 20, 2012. She reported bilateral knee pain with movement, as well as cracking or popping in both knees. She stated that she has difficulty climbing stairs due to the tendency of her knees to lock up, and reported prolonged edema by the end of the day. She denied flare-ups. Right and left knee flexion was measured as 100 degrees, with painful motion beginning at 100 degrees. Right and left knee extension ended at 0 degrees, with painful motion at 0 degrees. These measurements were the same after repetitive use. Functional losses included pain on movement, swelling, disturbances of locomotion, interference with sitting, standing, and weight bearing, and, possibly, incoordination; with regards to the latter, it was not specified which knee was effecting. All joint stability tests were normal. It was reported she had a bilateral meniscal tear with frequent episodes of locking, pain, and effusion. The Veteran reported constant use of a brace. The examiner noted that an MRI from July 2012 found a chronic partial ACL tear resulting in fibrosis and laxity in the right knee, and a blunting of the posterior horn medial meniscus from prior arthroscopic meniscectomy, without acute soft tissue injury. The Veteran's most recent VA examination was in April 2013. She reported bilateral knee pain with movement, with cracking and popping in both knees. She stated that she has trouble climbing stairs because her knees tend to lock up. Flare-ups occurred daily with overuse. The Veteran reported severe joint instability, with her right knee worse than her left. She stated that she falls weekly due to her knee pain and instability. However, the examiner noted that an orthopedic surgery note from December 2012 stated that the Veteran had pain out of proportion to her clinical findings and is on chronic narcotic dosage, and is likely totally dependent on such medications. Right and left knee flexion was measured as 110 degrees, with painful motion beginning at 100 degrees. Right and left knee extension ended at 0 degrees, with no objective evidence of painful motion. These measurements were the same after repetitive use. There was no additional limitation or functional loss after repetitive use. All joint stability tests were normal. It was reported she had a bilateral meniscal tear with frequent episodes of locking, pain, and effusion. The examiner stated that flare-ups are mostly an increase in her pain levels and joint instability, with no loss of function. There was no way to accurately determine additional loss of range of motion due to flare-ups or pain with use, and it seemed to a chronic state of pain without loss of function. The Board has also reviewed the Veteran's VA and private treatment records. Private records discuss knee pain, with difficulty standing or sitting on occasion. See, e.g., record from August 18, 2011. VA treatment records also discuss her knees. A September 2012 report noted that the Veteran reported bilateral pain and instability with catching and locking on the left knee. There was full range of motion, no laxity with patellar shift, negative Lachman test, and negative posterior and anterior drawer. The physician was unable to elicit any instability. A January 17, 2013, orthopedic note found that her right knee had a minimally positive Lachman test with very little anterior drawer shift when compared to the opposite knee, with minimal ACL laxity in her right knee. The Board has also considered relevant lay evidence from the Veteran. She reported multiple surgeries in her July 2012 notice of disagreement. In her February 2013 notice of disagreement, she stated that she has a noticeable limp and wears a brace. The Veteran also testified before the Board in February 2014. She stated that her right knee was very unstable, and gives out on her when going up the stairs. She stated that her left knee pops. She reported constant pain. She stated that she is virtually unemployable because she can't do anything without being a problem and is dependent upon opiates. As noted above, to receive a minimal compensable evaluation under DC 5260, limitation of flexion of the leg must be limited to 45 degrees. Moreover, for a 10 percent rating under DC 5261, extension must be limited to 10 degrees. Even when considering the DeLuca factors, the requirements for increased or additional ratings under these codes have not been met. However, at her November 20, 2012, examination, the Veteran was found to have a bilateral meniscal tear with frequent episodes of locking, pain, and effusion. See examination report at p. 18-19. These findings were duplicated at the Veteran's April 2013 VA examination. See examination report at p. 13. During her initial compensation examination in 2010, the past history of surgery for meniscal damage was noted and the Veteran complained of locking in the knee. Resolving all doubt in the Veteran's favor, 20 percent ratings for each knee are warranted under DC. As previously noted, this is the maximum rating under this code. As discussed previously, the limitation of motion does not warrant even a minimal compensable evaluation. DC 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. VA treatment records and examination records have found no instability upon examination. However, the Veteran has reported knee instability, especially as to her right knee. The Board notes that the Veteran is certainly competent to report experiencing symptoms such as knee instability; however, physical examinations performed by medical professionals provided affirmative evidence that there was no instability. Indeed, the examiners performed tests specifically used to assess whether there is instability. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran has knee instability. Therefore, the Board concludes that the Veteran has not met the criteria for a rating for subluxation or lateral instability under Diagnostic Code 5257. In making these determinations, the Board has considered all potentially applicable diagnostic codes, and finds no basis upon which to assign an evaluation in excess of the rating assigned herein under any other alternate code. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board has further considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In short, the Veteran has occupational and social impairment due to the symptoms discussed above. Specifically, knee pain, reduced range of motion, and locking are contemplated by the rating criteria. ORDER A rating of 20 percent, but no greater, for right knee strain status post-surgery times two and ACL reconstruction is allowed, subject to the regulations governing the award of monetary benefits. A rating of 20 percent, but no greater, for left knee strain status post surgeries for plica syndrome is allowed, subject to the regulations governing the award of monetary benefits. REMAND If claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, the Veteran testified before the Board that she is unemployable. A claim for a TDIU will therefore be inferred from the Veteran's file. Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Given the Board's decision above, Veteran met this requirement as of November 20, 2012, when her combined knee disabilities, affecting a single body system, satisfied the 40 percent or greater requirement, and her overall disability rating reached 70 percent. 38 C.F.R. § 4.16(a). Her disability rating for post-traumatic stress disorder has also been increased to 70 percent, effective December 26, 2013. Upon remand, the Veteran should be provided with proper notice as to the elements and information necessary to substantiate her claim for a TDIU. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16. After development upon remand, the RO should adjudicate her TDIU claim in the first instance. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran and her representative a notice letter that explains how to establish entitlement to a TDIU. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of her claims. Associate any records or responses received with the claims file, and undertake any reasonable indicated development. 2. Request the Veteran to identify any outstanding records with regards to treatment for her knee disabilities for the period beginning September 1, 2014, and to complete the necessary form (VA Form 21-4142) for VA to obtain any non-VA records. After obtaining the necessary authorizations, request copies of any outstanding records. All requests for the above-described records and all responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records. 3. After the above actions, arrange for the Veteran to undergo a VA examination to determine the current severity of her service-connected bilateral knee disabilities. The entire claims file, including a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. All appropriate tests and studies, including, as appropriate, X-rays and range of motion studies, should be conducted, and all clinical findings should be reported in detail. The examiner should note the ranges of motion for the left and right knees and whether any ankylosis is present. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the left or the right knee is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. In addition, the orthopedic examiner should note whether the Veteran has any instability or recurrent subluxation of either knee. 4. After the above actions, take appropriate action to develop and adjudicate the Veteran's claim for a TDIU, to include, if deemed necessary, a social and industrial survey and a VA examination to address the question of whether the Veteran's service connected disabilities render her unable to secure and maintain substantially gainful employment. 5. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. The Veteran and her representative should then be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the case is returned to the Board for further review. No action is required of the Veteran until she is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of her claim. 38 C.F.R. § 3.655. The Veteran has the right to submit additional evidence and argument on the matter 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. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs