Citation Nr: 1634685 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 06-31 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected cervical spine disability. 2. Entitlement to a disability evaluation in excess of 20 percent for postoperative residuals of a right knee injury with chondromalacia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran had active duty from July 1975 to August 1979. This appeal is before the Board of Veterans' Appeals (Board) on appeal from April 2005, April 2009, and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, January 2012, and October 2013, the Board remanded the claims for additional development and adjudicative action. Since the Board's last remand in October 2013, the Veteran was granted service connection in a February 2014 rating decision for a right hip disability, including chronic trochanteric bursitis, strain, and instability. The Veteran was also granted service connection in an August 2014 rating decision for radiculopathy of the right upper extremity. The Veteran has not appealed either of these decisions, and they are not before the Board. The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge in March 2013. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The issue of entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected cervical spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's postoperative residuals of a right knee injury with chondromalacia is not manifested by severe recurrent subluxation or lateral instability. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for postoperative residuals of a right knee injury with chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.27, 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans' Claims has 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 v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the 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 (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). The Veteran's right knee is currently rated as 20 percent disabling under Diagnostic Code 5257. For Diagnostic Code 5257, an increased 30 percent disability rating is warranted for severe recurrent subluxation or lateral instability. Words such as "mild," "severe," and "moderate" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence so that decisions will be equitable and just. 38 C.F.R. § 4.6. In a November 2009 rating decision, the RO granted the Veteran a 10 percent disability rating for limitation of motion under Diagnostic Code 5260. Under Diagnostic Code 5260, a 20 percent disability evaluation is warranted for flexion limited to 30 degrees, and a 30 percent disability evaluation is warranted for limitation of flexion to 15 degrees. Under Diagnostic Code 5261, a noncompensable evaluation is warranted for extension limited to 5 degrees and a 10 percent disability rating is warranted for extension limited to 10 degrees. The Veteran was afforded a VA medical examination for his right knee in March 2009. The Veteran reported his knee giving out from time to time and that it was worse if he did not wear his knee brace. His flexion was limited to 80 degrees with pain beginning at 60 degrees. His extension was normal. The Veteran's motion was not additionally limited by multiple repetitions. Pain, fatigue, and lack of endurance were noted after multiple repetitions. There was no ankylosis. There was increased pain with valgus stress. There was objective evidence of pain and instability on examination. The Veteran's private treatment records from Dr. B.T. in March 2012 show that he had a lateral meniscus tear to his right knee due to a work-related fall one year prior for which he was receiving worker's compensation. The Veteran had surgery performed on his right knee in 2012 to repair his meniscal tear. The Veteran's private treatment records from All-Star Orthopaedics show that the Veteran was treated for his right knee continuing to pop and having trouble walking. The Veteran reported that this was a work-related injury. The Veteran reported pain in his knee. There was locking or catching, giving way, popping, numbness, or tingling. The Veteran's VA treatment records from April 2008 to November 2014 show treatment for a painful right knee and the provision of knee braces. The Veteran was afforded another VA medical examination in April 2014 for his knee. The Veteran reported no incoordination. His flexion ended at 80 degrees with pain beginning at 60 degrees. His extension was normal with pain beginning at 5 degrees. The same range of motion was observed after multiple repetitions. The Veteran was noted to walk with an antalgic gait. The stability tests were all normal. There was moderate recurrent patellar subluxation/dislocation noted. Frequent episodes of joint locking, joint pain, and joint effusion were noted. The Veteran regularly used a brace and a cane. Traumatic arthritis was documented. As is shown by the Veteran's VA medical examinations, VA treatment records, and private treatment records, the Veteran's right knee disability does not warrant an increased disability rating. His right knee extension is normal. His right knee flexion does not warrant a compensable rating. However, he has been awarded a 10 percent disability rating for limitation of flexion, which will not be disturbed. While the Veteran reported his knee giving way at times, he is being compensated for moderate recurrent subluxation or lateral instability. There is no evidence that his recurrent subluxation or lateral instability is severe. Extraschedular The Board considered the application of 38 C.F.R. § 3.321(b)(1), which is applicable in exceptional cases where schedular evaluations are found to be inadequate. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is therefore adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's postoperative residuals of a right knee injury with chondromalacia and his symptomatology. The overall disability picture with respect to his postoperative residuals of a right knee injury with chondromalacia does not show any significant impairment beyond that contemplated by the ratings assigned. There is no evidence of more severe manifestations occurring, such as hospitalization or incapacitation due to any of these disabilities. There is no evidence of any more severe functional or occupational impairment during the period on appeal. As such, the Veteran's disability picture is contemplated by the rating schedule and the schedular rating criteria are adequate to address his symptoms and average impairment of earning capacity. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the rating schedule, the assigned scheduler ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER A disability rating in excess of 20 percent for postoperative residuals of a right knee injury with chondromalacia is denied. REMAND The Veteran has reported that his right shoulder disability was incurred during active military service when he was beaten or when he cut his arm. However, the Veteran's 1996-2000 private treatment records from Dr. J.C. show that the Veteran was a corrections officer with the Federal Department of Corrections and that during that time the Veteran was electrocuted. Dr. J.C. opined in March 1997 that the Veteran's right shoulder posterior instability was the result of his electrocution and that his right shoulder chronic subacromial impingement of the AC joint arthritis was probably as a result of the electrocution. Specifically, the Veteran reported that he was injured during an electrocution accident when moving a commercial electrical appliance away from a wall in July 1990. The Veteran reported that the appliance was "booby-trapped," and when the appliance was moved, it passed 270 volts through his right hand. The Veteran reported being thrown across the room, approximately 12 to 14 feet, and landing against a pipe, which struck him directly between his right scapula and spine. The Veteran reported losing consciousness and being taken to the emergency room. He reported that after that time he was told that his shoulder was "permanently dislocated." At that time, the Veteran reported that he felt that lived in severe pain since the electrocution. He reported that his dreams and life goals were ruined as a result. The Veteran also reported working through the federal regulations to get his care and agreeing to settle his case with regard to his right shoulder. Accordingly, the case is REMANDED for the following action: 1. The Veteran is to be provided with the proper authorization forms in order to allow VA to obtain his medical treatment records, employment records, and any claims that he made with regard to his electrocution from the Federal Department of Corrections. The Veteran is instructed that the duty to assist is a two-way street. If an appellant wishes help in determining his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If the AOJ cannot locate such records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the Veteran of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a new VA medical examination to address whether it is at least as likely as not that any right shoulder disability (other than the right upper extremity radiculopathy for which he is already service-connected) is related to his active military service or his service-connected disabilities. A complete rationale must be provided for any opinion offered. 3. Conduct any other appropriate development deemed necessary, to include additional examinations as warranted. Thereafter, readjudicate the claim, considering all evidence of record. If any of the benefits sought remain denied, the Veteran must be provided a supplemental statement of the case. An appropriate period of time should be allowed for a response. 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs