Citation Nr: 1513437 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 13-28 640A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable rating for tinnitus. 2. Entitlement to rating in excess of 30 percent for status post total left knee replacement with internal derangement and scar (hereinafter, left knee disability). 3. Entitlement to an initial rating in excess of 30 percent for status post total right knee replacement with scar (hereinafter, right knee disability). 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from May 1952 to August 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal of May 2011 and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. The issues of entitlement to service connection for Parkinson's disease and hearing loss, clear and unmistakable error in the original rating decision which assigned a noncompensable evaluation for tinnitus, and entitlement to a temporary total rating for surgical convalescence for a total right knee replacement in December 2005, have been raised by the record in September 2014 correspondence, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has recurrent and persistent tinnitus that warrants a compensable rating. 2. The Veteran's left knee disability is manifested by a total knee replacement, well-healed scar, pain and some limited flexion. 3. Throughout the appeal period, the Veteran's right knee disability is manifested by a total knee replacement, well-healed scar, pain and some limited flexion. CONCLUSIONS OF LAW 1. The criteria for a 10 percent evaluation for tinnitus have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2014). 2. The criteria for a rating greater than 30 percent for a left knee disability are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2014). 3. The criteria for an initial rating greater than 30 percent for a right knee disability are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April and June 2011 correspondence of the information and evidence needed to substantiate and complete his claims for increased ratings, to include notice of what part of that evidence he was to provide and what evidence VA would attempt to obtain. These letters also provided notice about how VA determines the ratings and effective dates. VA has made reasonable efforts to assist the appellant by obtaining relevant records which he has adequately identified. This includes securing VA treatment records and providing a VA examination. The Veteran was notified and is aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Increased Ratings 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 (West 2014); 38 C.F.R. Part IV (2014). 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Tinnitus The Veteran contends that his service-connected tinnitus warrants a compensable rating. He has reported in statements that his tinnitus is recurrent. In a December 1997 rating decision, the RO granted service connection for tinnitus and assigned a noncompensable rating. The Veteran's claim for an increased (compensable) rating for tinnitus was received in June 2011. By a January 2012 rating decision, the RO denied a compensable rating for tinnitus. The Veteran's tinnitus has been rated under 38 C.F.R. § 4.87, Diagnostic Code 6260 of the Rating Schedule. Under Diagnostic Code 6260, a 10 percent evaluation is assigned for recurrent tinnitus, whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note (2) (2014). The Board finds the Veteran's contentions regarding the persistency of his tinnitus to be credible. Accordingly, the Board finds that the Veteran's bilateral tinnitus is recurrent, and therefore a 10 percent evaluation is warranted. This is the maximum schedular rating assignable for tinnitus Left Knee and Right Knee Initially, the Veteran's left knee disability was rated 20 percent under Diagnostic Code 5257 for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability of the knee. The Veteran underwent a total knee replacement in January 2000 and was awarded a temporary total rating for surgical convalescence until March 2001. Thus, from March 1, 2001, the Veteran's left knee disability is rated under Diagnostic Code 5055 for knee replacements (prosthesis). 38 C.F.R. § 4.71a, Diagnostic Code 5055. Service connection for a right knee disability, status post total knee replacement, was granted in a May 2011 rating decision. The RO assigned a 30 percent evaluation for the right knee disability. The Veteran has appealed for a higher initial rating. The right knee disability is also rated under Diagnostic Code 5055. Diagnostic Code 5055 allows for a rating of 100 percent for one year following implantation of prosthesis. Thereafter, the Code provides for a minimum rating of 30 percent. A 60 percent rating is warranted where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. The knee may also be rated by analogy using Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension) or 5262 (impairment of the tibia and fibula) if they provide for a rating greater than the 30 percent minimum. In regard to Diagnostic Code 5261 (limitation of extension), normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a. VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. The Veteran underwent a VA (QTC) examination in May 2011. He reported that he has lack of endurance and pain in the left knee. He stated that he did not experience weakness, stiffness, swelling, heat, redness, giving way, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation or dislocation. He also denied any flare-ups. He indicated that he did not experience any overall functional impairment from this condition. With respect to the right knee, he indicated that he experienced swelling, lack of endurance and locking. He stated that he did not experience weakness, stiffness, heat, redness, giving way, fatigability, deformity, tenderness, drainage, effusion, subluxation, pain or dislocation. He described his overall functional impairment as having difficulty climbing, standing and walking. Physical examination revealed a scar located over the right knee due to the total right knee replacement. The entire scar measured 23 cm by .6 cm. The scar was not painful or examination and there was no skin breakdown. The scar was superficial with no underlying tissue damage. It was not disfiguring and did not limit the Veteran's motion. There was a scar over the left knee due to the total knee replacement. The scar measured 25 cm by .5 cm. The scar was not painful on examination and there was no skin breakdown. It was superficial with no underlying tissue damage. It was not disfiguring and did not limit the Veteran's motion. The Veteran walked with a normal gait. There was tenderness in the right knee. The right knee did not show any signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. There was no subluxation. There was no locking pain, genu recurvatum or crepitus. There was tenderness on the left knee. The left knee did not show any signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. There was no subluxation. There was no locking pain, genu recurvatum or crepitus. There was no ankylosis of the knee. Range of motion testing of the right knee revealed that flexion was to 80 degrees with pain demonstrated at 60 degrees. Repetitive motion was to 80 degrees. There was no additional degree of limitation upon repetitive motion. Extension of the right knee was to 0 degrees. Flexion of the left knee was to 80 degrees with pain demonstrated at 60 degrees. Repetitive motion was to 80 degrees. There was no additional degree of limitation upon repetitive motion. Extension of the left knee was to 0 degrees. The examiner noted that on the right and left, the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Veteran was unable to perform stability tests for either knee because of the total knee replacements. In light of the evidence presented above, the Board finds that the Veteran's left and right knee disabilities are primarily manifested by pain, tenderness and some limitation of flexion. The medical findings, however, are not consistent with "severe" chronic residuals of painful motion or weakness. In fact, examination of the knees did not show any edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, or drainage. Thus a higher evaluation under Diagnostic Code 5055 is not warranted. As noted, Diagnostic Code 5055 also provides for ratings greater than 30 percent if appropriate under diagnostic codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula) by analogy. In this respect, the medical evidence doesn't show that the Veteran's left or right knee is currently ankylosed, nor is either knee manifested by impairment of the tibia and fibula. Therefore Diagnostic Codes 5256 and 5262 are inapplicable. Moreover, limitation of extension has not been demonstrated in either knee. As a result, Diagnostic Code 5261 is not for application. The Board notes that functional loss was also considered for this time period. The Veteran complained of some functional limitations, to include pain after prolonged walking or standing and lack of endurance. However, the examiner found no further loss of motion of the left knee due to repetition, pain, weakness, fatigue or incoordination. Thus, the Board finds no evidence of functional loss above and beyond that which is contemplated by his current 30 percent ratings. Consideration has been given to assigning staged ratings; however, at no time during the period in question has either knee disability warranted more than the current assigned 30 percent ratings. The Board has also considered the Veteran's lay statements regarding the severity of his service-connected right and left knee disabilities. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating for disabilities; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Board finds the Veteran competent to provide evidence as to his symptoms, the medical findings, which directly address the criteria under which the service-connected disabilities are considered more probative than his assessment of the severity of his disabilities, particularly as he does not address the findings necessary to evaluate the disabilities under the rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned disability ratings contemplate his left and right knee symptoms. As such, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected left and right knee disabilities present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2014). Thus, referral for the assignment of an extraschedular rating for either disorder is not warranted. ORDER A compensable (10 percent) rating for tinnitus is granted, A rating in excess of 30 percent for the left knee disability is denied. An initial rating in excess of 30 percent for the right knee disability is denied. REMAND With regard to the claim for a TDIU, the Veteran contends that his service-connected knee disabilities and tinnitus prevent him from being employed. Initially, the Board notes that the Veteran has not submitted a completed VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability. However, the Veteran's representative has explained that the Veteran is not capable of completing this form due to his severe Parkinson's disease. In this case, the Veteran meets the criteria for a TDIU based on a combined rating (for the right and left knee disabilities). However, there is an incomplete picture regarding the impact of the Veteran's service-connected disabilities on his employability considering his day-to-day functioning and educational background. As such, the Board finds that a social and industrial survey considering the effects of the Veteran's service-connected disabilities on employability should be obtained. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should schedule the Veteran for a social and industrial survey (field examination) by a VA social worker or other appropriate personnel. The social worker should elicit and set forth pertinent facts regarding the Veteran's medical history, education and employment history, day-to-day functioning, and social and industrial capacity. The ultimate purpose of the VA social and industrial survey is to ascertain the impact of the Veteran's service-connected disabilities on his ability to work. A written copy of the report should be associated with the claims folder. 2. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs