Citation Nr: 1522628	
Decision Date: 05/28/15    Archive Date: 06/11/15

DOCKET NO.  12-03 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to higher initial schedular ratings for degenerative joint disease of the right knee.

2.  Entitlement to an extraschedular rating for degenerative joint disease of the right knee. 

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to February 1987. 

This matter is before the Board of Veterans' Appeals on appeal of rating decisions in March 2010, August 2010 and July 2012 of the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA). 

The March 2010 rating decision granted service connection for right knee degenerative joint disease with an initial disability rating of 10 percent (based on limitation of flexion).  The August 2010 rating decision denied a rating in excess of 10 percent for right knee degenerative joint disease and the July 2012 rating decision, in pertinent part, denied the claim for TDIU.

In June 2014, the Board remanded the case for additional development.  Subsequently, in a September 2014 rating decision, the RO assigned a 10 percent rating for degenerative joint disease of the right knee based on limitation of extension beginning from September 16, 2014.  

Pursuant to 38 C.F.R. § 20.900(c), this appeal has been advanced on the Board's docket.

The issues of entitlement to an extraschedular rating for right knee disability, and for TDIU, are being REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Throughout the appeal, the Veteran's right knee degenerative joint disease has manifested with pain, flexion limited to no less than 70 degrees and extension to zero degrees (five degrees in September 2014), including on repetition; and without clinical evidence of instability, ankylosis, or frequent episodes of locking, pain and effusion into the joint. 

2.  A meniscus tear with partial meniscectomy in September 2010 is demonstrated.


CONCLUSIONS OF LAW

1.  The criteria for a schedular rating in excess of 10 percent for right knee degenerative joint disease based on limitation of flexion are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes (DCs) 5003, 5260 (2014).

2.  The criteria for a compensable schedular rating prior to September 16, 214, and a schedular rating in excess of 10 percent for right knee degenerative joint disease based on limitation of extension since September 16, 2014, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Codes (DCs) 5003, 5261 (2014).

3.  The criteria for a 20 percent schedular rating for meniscus tear, status post partial meniscectomy of the right knee have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.71a, Diagnostic Code (DC) 5258 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014).

The appeal arises from a disagreement with the initially assigned disability ratings after service connection was granted.  Once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice is no longer required because the claim has already been substantiated.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c).

The Veteran's service treatment records have been obtained.  Post-service VA and private treatment records have also been obtained.

The Veteran was provided a VA medical examination in January 2010, February 2010, March 2012, and September 2014.  The examinations are sufficient evidence for deciding the claim.  Their reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the right knee disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain a reasoned explanation.  Thus, VA's duty to assist has been met.

II.  Legal Framework

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life.  Generally, the degree of disability specified is considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion.  In the absence of limitation of motion, a 20 percent evaluation is provided where there is X-ray evidence of involvement of two or more major joints, or two of more minor joint groups with occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, DC 5003 (2014).  The knee is considered a major joint.  38 C.F.R. § 4.45(f). 

Under 38 C.F.R. § 4.71a, there are other diagnostic codes that may be employed to evaluate impairment resulting from service-connected knee disorders. 

Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, 20 percent evaluation if it is moderate, and 30 percent rating if it is severe.  38 C.F.R. § 4.71a, DC 5257.

Diagnostic Code 5258 provides a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 

Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic.  38 C.F.R. § 4.71a, DCs 5258 and 5259.

Limitation of flexion of the knee warrants a 30 percent rating for limitation to 15 degrees, a 20 percent rating for limitation to 30 degrees, a 10 percent rating for limitation to 45 degrees, and a 0 percent rating for limitation to 60 degrees.  38 C.F.R. § 4.71a, DC 5260. 

Limitation of extension of the knee warrants a 50 percent rating for limitation to 45 degrees, a 40 percent rating for limitation to 30 degrees, a 30 percent rating for limitation to 20 degrees, a 20 percent rating for limitation to 15 degrees, a 10 percent rating for limitation to 10 degrees and a 0 percent rating for limitation to 5 degrees.  38 C.F.R. § 4.71a, DC 5261. 

The normal range of motion of the knee is from zero to 140 degrees.  38 C.F.R. § 4.71, Plate II.

Additional rating criteria are found under DCs 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). 

A knee disability rated under DC 5257 or DC 5259 warrants a separate rating for arthritis based on X-ray findings and limitation of motion under DC 5260 or DC 5261; limitation of motion need not be compensable, but must at least meet the criteria for a zero-percent rating under those codes.  A separate rating for arthritis may also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59 and DC 5003.  VAOPGCPREC 9-98 (1998).  Separate ratings are also available for limitation of flexion and limitation of extension under DCs 5260 and 5261.  VAOPGCPREC 9-2004 (2004).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis).  

Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Burton, 25 Vet. App. at 5.

Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code (relating to range of motion) where pain does not cause a compensable functional loss.  The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned.  This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss."  Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  As the Secretary advised the Court in Mitchell, it is VA policy to award a single 10 percent rating per joint, but no more, for painful motion alone.  Id. at 36.  

III.  Evidence

A VA examination in January 2010 the Veteran reported the following right knee symptoms:  daily dislocations or subluxation, giving way, instability, pain, stiffness, weakness, incoordination, locking episodes, and effusion.  On examination, the Veteran's gait was antalgic.  There was bony joint enlargement, crepitus, deformity, tenderness, weakness, and guarding of movement.  There was subpatellar tenderness, but no meniscus abnormality and no instability.  Range of active right knee motion was from zero to 120 degrees.  There was objective evidence of pain following repetitive motion, but no additional limitation of motion following three repetitions.  There was no ankylosis.  X-rays showed moderate degenerative joint disease of the right knee, and findings consistent with synovial osteochondromatosis.  

On VA examination in February 2010, the Veteran reported that his knee locked and had repeated effusions.  He denied symptoms of inflammation.  On examination, his gait was normal.  There were no clicks or snaps, and no grinding.  There was no patellar or meniscal abnormality, and no instability.  There was effusion.  There was no pain on active motion of the right knee.  Range of motion was from zero to 110 degrees.  There was no objective evidence of pain following repetitive motion, and no additional limitations after three repetitions.  The examiner noted that a December 2009 MRI showed severe degenerative joint disease, destruction of the lateral meniscus, partial tear of the anterior cruciate ligament, and loose bodies vs. synovial osteochondromatosis.  

A June 2010 VA orthopedic consultation noted that the Veteran needed a right knee replacement but was too young.  An arthrotomy was recommended to remove loose bodies.  In September 2010 the Veteran underwent a scope-assisted removal of loose bodies and partial meniscectomy of the right knee.

On VA examination in March 2012, the range of right knee motion was from zero to 100 degrees.  There was no objective evidence of painful motion.  There was no objective evidence of pain following repetitive motion, and no additional limitations after repetitive testing.  Instability testing was normal.  There was no evidence of recurrent subluxation or dislocation of the patella.  The examiner noted that the Veteran had a history of meniscal tear.  The examiner noted that the Veteran regularly used a brace and occasionally used a cane.  

In June 2012 the Veteran was seen at Tulane Medical Center with complaints of right knee pain.  Examination showed knee effusion.  There was full range of motion of the right knee, with no evidence of instability and no other abnormalities.  X-ray showed some calcifications and degenerative changes.

A June 2014 MRI report noted the Veteran complained of knee pain, popping, swelling, stiffness, and limited range of motion.  The MRI showed subtotal absence of the lateral meniscus.

On VA examination in September 2014, the Veteran's right knee flexion was to 70 degrees.  Extension was to five degrees.  There was no additional limitation of ranges of motion following repetitive use testing.  The examiner identified functional loss of the right knee involving less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting.  Muscle strength testing was 3/5 in the right knee for flexion and extension.  All joint stability tests were normal for the right knee.  There was no evidence or history of recurrent patellar subluxation/dislocation.  The Veteran used a cane.  

IV. Analysis

Service connection for right knee degenerative joint disease was granted in the March 2010 rating decision on appeal.  An initial 10 percent rating was assigned from November 2009.  The RO granted the initial 10 percent rating based on a finding that there was limitation of flexion.  In a September 2014 rating decision, a separate 10 percent rating was granted for limitation of extension of the right knee.

As the Veteran consistently demonstrated right knee flexion to at least 70 degrees, this range of motion does not more nearly approximate or equate to flexion limited to 45 degrees, the criterion for a 10 percent rating for limitation of flexion under Diagnostic Code 5260.  Further, as the Veteran demonstrated right knee extension to no worse than five degrees, this range of motion does not more nearly approximate or equate to extension to 10 degrees, the criterion for a 10 percent rating for limitation of extension under Diagnostic Code 5261.

With regard to whether a higher rating is warranted based on functional loss, while the Veteran experienced pain on motion, the pain did not create any additional limitation of motion, thereby rising to the level of functional loss to 45 degrees of flexion or 10 degrees of extension, the criteria for compensable ratings under Diagnostic Codes 5260 and 5261.  See Mitchell, 25 Vet. App. at 36.  The current 10 percent rating under DC 5260 prior to September 16, 2014,  is the maximum rating assignable under this disability picture.  Id.  A separate compensable disability rating under DC 5261 beginning earlier than September 16, 2014, cannot be assigned as the Veteran's extension was not compensable.  The current 10 percent rating beginning from September 16, 2014, is binding at this point.  See Murphy v. Shinseki, 26 Vet. App. 510 (2014).  A rating higher than 10 percent beginning from September 16, 2014, is not warranted as the evidence shows that his extension was not to at least 10 degrees.  Rather, the current ratings contemplate the complete functional effects of his right knee disability.  See Mitchell, 25 Vet. App. at 36.  

Furthermore, in the absence of any objective (or reported) evidence of knee instability, the findings do not more nearly approximate or equate to slight recurrent subluxation or lateral instability, the criterion for a separate 10 rating pursuant Diagnostic Code 5257.  Moreover, as there was no objective evidence of instability, an increased rating based on moderate recurrent subluxation or lateral instability, the criterion for the next higher rating under Diagnostic Code 5257, is not warranted.

A separate rating is not warranted under DC 5262 as malunion of the tibia and fibula is not shown.

Resolving reasonable doubt in the Veteran's favor, a separate 20 percent rating is warranted under DC 5258.  The Veteran underwent a meniscectomy in September 2010 due to meniscus tear with associated symptoms; effusion was noted in June 2012 and disturbance of locomotion and interference with sitting were noted on the September 2014 examination.  

In light of the foregoing, a separate 20 percent schedular rating is warranted under DC 5258.  Aside from this rating, no separate, higher, or further staged ratings are warranted.  In reaching all conclusions above, the Board has resolved all reasonable doubt in the Veteran's favor, where possible.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

An initial rating in excess of 10 percent for degenerative joint disease of the right knee, based on limitation of flexion, is denied.

An initial compensable schedular rating prior to September 16, 2014, and a rating higher than 10 percent beginning September 16, 2014, for degenerative joint disease of the right knee, based on limitation of extension, is denied.

A rating of 20 percent for meniscus tear, status post partial meniscectomy of the right knee is granted.


REMAND

In situations where entitlement to an extraschedular rating or a TDIU arises in connection with an appeal for an increased rating, the Board is not precluded from issuing a final decision on the increased rating claim and remanding the extraschedular-rating and/or TDIU-rating issue(s) to the RO.  Brambley v. Principi, 17 Vet. App. 20, 24 (2003); VAOGCPREC. 6-96 (Aug. 16, 1996).  It is within the Secretary's discretion to bifurcate the claim.  See Locklear v. Shinseki, 24 Vet. App. 311 (2011). 

Here, the Veteran's claims for increased initial ratings for right knee disabilities are bifurcated into one part that is a schedular evaluation of the ratings (discussed and decided above) and a second part that deals with an extraschedular evaluation of the same and a TDIU.  Given the facts of this case, development of the TDIU claim may impact the extraschedular aspect, and as such both are remanded to the RO.  See Brambley, 17 Vet. App. at 24.

A TDIU is governed by 38 C.F.R. § 4.16, which provides that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

The Veteran's only service connected disabilities relate to his right knee.  The combined rating for those disabilities is 40 percent.  See 38 C.F.R. § 4.25.  On this basis, the right knee disabilities are considered a single disability.  Nonetheless, the Veteran does not meet the minimum schedular threshold requirement (of a single disability rating of 60 percent or more) to be considered for a TDIU rating.  38 C.F.R. § 4.16(a) (2014).  A TDIU, however, may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

The September 2014 VA examiner stated that the Veteran's "current knee condition would not allow for gainful employment- per patient being worked up for total knee replacement."  The examiner provided no rationale for his finding; there is no discussion of why his knee disability would preclude all types of employment, including in sedentary positions.

Accordingly, the Board finds that the September 2014 VA opinion, as it pertains to the TDIU claim, is inadequate.  Once VA undertakes to provide an examination or opinion, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination by an appropriate medical professional to determine the effects of his service-connected right knee disabilities (combined rating of 30 percent) on his ability to obtain and maintain employment consistent with his education and occupational experience.  The relevant information in the claims file, which is an electronic file, must be provided to the examiner for review.

Accordingly, the examiner is asked to evaluate whether the Veteran's right knee disability picture-whether due to any single disability component or a cumulative effect of multiple components-impairs his ability to meet the demands of a job, either sedentary or physical.  This should include evaluation of the limitations and restrictions imposed by his service-connected impairments on such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling.  

The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred.

2.  Then, readjudicate the issues remaining on appeal, including whether referral for extraschedular consideration is warranted for a right knee disability or for TDIU.  If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board.

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
C. BOSELY	
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs