Citation Nr: 1751310 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-25 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to May 24, 2011, for residuals of tibia and fibula fracture with scar. 2. Entitlement to an initial rating in excess of 30 percent as of July 1, 2012, for status post right total knee replacement with scar. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran had active service from March 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the August 2010 rating decision, the RO, in pertinent part, continued the 20 percent rating for residuals of tibia and fibula fracture of the right leg. In a November 2011 rating decision, the RO recharacterized the Veteran's right leg disability as status post total right knee replacement and assigned a 100 percent rating as of May 24, 2011, and a 30 percent rating as of July 1, 2012, which effectively discontinued the previous rating assigned for residuals of tibia and fibula fracture. Therefore, so as to accurately reflect the nature of the issues before the Board, these issues have been recharacterized as shown on the title page of this decision. In a January 2014 rating decision, the RO denied the Veteran's claim for entitlement to a total disability rating based on individual unemployability (TDIU). A review of the record, however, shows that the Veteran did not submit a Substantive Appeal (e.g., VA Form 9 or equivalent statement) for the TDIU issue. See 38 U.S.C. § 7105(a) (2012); see also 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302 (2017). Thus, the issue of entitlement to a TDIU is not on appeal at this time before the Board. Finally, the Board notes, service connection issues relevant to the low back and left knee were also on appeal; however, as service connection has been granted, these issues are no longer before the Board. See July 2017 rating decision. FINDINGS OF FACT 1. From the March 2010 claim for increase, exclusive from the period where a temporary total rating has been assigned from May 24, 2011, to July 1, 2012, the Veteran's residuals of a fracture of the right tibia and fibula were not manifested by ankylosis, a disorder involving semilunar cartilage, flexion limited to 15 degrees, extension limited to 20 degrees, or malunion with marked ankle disability. 2. As of July 1, 2012, the Veteran's residuals of status post right total knee replacement (TKR) with scar have reasonably been shown to manifest as chronic residuals of TKR consisting of severe weakness or severe painful motion. CONCLUSIONS OF LAW 1. From March 17, 2010 to May 24, 2011, the criteria for a rating in excess of 20 percent for the residuals of a fracture of the right tibia and fibula have not been met. 38 U.S.C.§§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2017). 2. As of July 1, 2012, the criteria for a disability rating of 60 percent for right knee status post TKR have been met. 38 U.S.C.§§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5256, 5261, 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Analysis The Veteran seeks a higher rating for his service-connected residuals of a fracture of the right tibia and fibula (i.e., right knee disability). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 evaluation of the same disability or manifestation under different diagnoses constitutes pyramiding and must be avoided. 38 C.F.R. § 4.14 (2017). To determine what constitutes the same disability or manifestation for purposes of pyramiding, the Board looks to the symptomatology of the conditions; if the symptomatology of one condition is duplicative of or overlapping with the other condition, awarding separate ratings would constitute pyramiding. If, however, the symptomatology is distinct and separate, separate evaluations are allowed. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Prior to May 24, 2011, the Veteran's residuals are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262, for impairment of the tibia and fibula. Diagnostic Code 5262 pertains to, in part, functional limitation of the knee. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R§ 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Impairment of the tibia and fibula is evaluated as follows: nonunion with loose motion, requiring a brace (40 percent); malunion with marked knee or ankle disability (30 percent); malunion with moderate knee or ankle disability (20 percent); and malunion with slight knee or ankle disability (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5262. There are additional diagnostic codes that apply to knee disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017) pertains to degenerative arthritis. Under that code, ratings are to be based on limitation of motion and, if noncompensable by that method, a rating of 10 percent is warranted for each major joint or group of minor joints affected. Id. For rating purposes, a knee is considered a major joint. 38 C.F.R. § 4.45(f) (2017). 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2017) pertains to ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259 pertain to meniscal conditions. Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Recurrent subluxation or lateral instability of the knee is evaluated as follows: severe (30 percent); moderate (20 percent); and slight (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (noncompensable). 38 C.F.R. § 4.71a, Diagnostic Code 5261. Residuals of tibia/fibula fracture from March 2010 to May 24, 2011 In a March 2010 claim, the Veteran requested an increase rating for his service-connected residuals of tibia/fibula fracture. An August 2010 rating decision continued the 20 percent rating. The Veteran disagrees with the decision, and seeks a higher rating. Treatment records during this period from the Salem VA Medical Center (VAMC) show treatment associated with the right knee; however, these records are negative for any objective medical evidence establishing a worsening of this condition to warrant a higher evaluation. Indeed, the treatment reports from the VAMC show occasional complaints of pain with flexion of the right knee. During April 2010 VA bone examination, the Veteran reported right knee pain that was relieved with medications. Physical examination was unremarkable. During July 2010 VA joint examination, the Veteran reported right knee pain. Physical examination revealed no right knee deformity, instability, weakness, or incoordination. There was, however, noted pain, stiffness, decreased speed of joint motion, and giving way. The Veteran reported daily episodes of dislocation or subluxation; however there were no episodes of locking. There was no noted knee ankylosis. The Veteran reported severe flare-ups that were at times severe. Range of motion revealed 90 degrees of flexion to both right and left knees; 0 degrees of extension to both right and left knees. There was objective evidence of pain after repetitive motion; however there was no additional range of motion loss. X-ray revealed bilateral knee osteoarthritis. The examiner noted a well-healed non-disfiguring, non-tender vertical scar just below right knee status post a prior surgery for fracture that measured 4.5 cm. The preponderance of the evidence shows that the Veteran's residuals of a right tibia and fibula fracture do not warrant a rating in excess of 20 percent during the period from March 17, 2010 to May 24, 2011. The most relevant findings are in the July 2010 VA examination, where the examiner found that after taking into account the impact of flare-ups, right knee range of motion was limited to no worse than 0 degrees of extension and 90 degrees of flexion. During that period, there is no evidence of ankylosis, a meniscal condition, or nonunion of the tibia and fibula with marked knee disability, or loose motion requiring a brace or instability. Thus, a schedular rating in excess of 20 percent is not warranted during this period. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the residual symptoms of his right tibia and fibula fracture. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing, however, in those statements is incompatible with the ratings already existing or assigned in this decision. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. As described above, the evaluation of the Veteran's right knee range of motion specifically accounted for the impact of these factors. Since the Veteran is assigned a compensable rating for his right knee symptoms during the relevant period on appeal, a compensable rating for arthritis under Diagnostic Code 5003 is not warranted. In addition, because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the knee, the Board finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned during this relevant period. Total knee replacement Under Diagnostic Code 5055, for one year following implantation of knee prosthesis for service-connected knee disability, a 100 percent rating is assigned. Thereafter, a 60 percent rating is assigned when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity; or, a minimum 30 percent rating is assigned. When there are intermediate degrees of residual weakness, pain, or limitation of motion, these intermediate residuals are to be rated by analogy under 38 C.F.R. § 4.71a, Codes 5256, 5261, or 5262. As discussed, normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5256, knee ankylosis in a favorable angle in full extension, or in slight flexion between zero and 10 degrees warrants a 30 percent rating. Knee ankylosis in flexion between 10 and 20 degrees warrants a 40 percent rating. Knee ankylosis in flexion between 20 and 45 degrees warrants a 50 percent rating. Knee ankylosis in extremely unfavorable, in flexion at an angle of 45 degrees or more warrants a 60 percent rating. As previously discussed, Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating, with moderate knee or ankle disability warrants a 20 percent rating, and with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion, requiring a brace warrants a 40 percent rating. As indicated previously, the Veteran was assigned a 100 percent rating for his right knee disability until July 1, 2012, when a 30 percent rating was assigned. During December 2013 VA examination, the Veteran reported continuous severe right knee pain. It was noted that he uses a cane for knee stability and pain. Range of motion was noted to be 130 degrees of flexion and 0 degrees of extension. The examiner noted that the Veteran experienced functional loss as there was less movement than normal, deformity, and disturbance of locomotion. Muscle strength was normal. The examiner indicated that the TKR manifests as intermediate degrees of residual weakness pain or limitation of motion. VA treatment records dated from September 2014 to November 2016 reflect that the Veteran is seen for, among others, chronic knee pain; however, the records do not include any specific right knee assessments. A December 2014 orthopedic VA treatment record documents the examiner's intent to issue a brace to help the Veteran with his right knee pain. During a May 2015 VA physical therapy visits, the Veteran reported a slight decrease in pain due to the knee brace; however, it appeared as if he used the knee brace continuously. During December 2015 VA examination, the Veteran complained of increased pain. He indicated that his pain was a 12 on a scale from 1-10. In regards to the knee replacement, the examiner noted the residuals to be an intermediate degree of residual weakness, pain, and limitation of motion. Range of motion of the knee showed flexion to be limited to 105 degrees and extension to be normal at 0 degrees. The Veteran experienced instability of station, disturbance of locomotion, and interference with standing. No nonunion was noted. No ankylosis was noted. The examiner noted the Veteran's total knee replacement to be healing well; however it was noted that the Veteran wears a hinged right knee brace for his knee condition; and he also uses a cane to help keep his balance. During a February 2017 VA examination, the Veteran reported that the pain is so bad at times that he is unable to function. He noted that his knee disability interferes with driving. It was noted the Veteran uses a brace, cane, and scooter for his knee disability. The examiner essentially indicated that testing could not be performed due to right knee pain. After a review of the evidence, the Board finds that a 60 percent rating is warranted pursuant to Diagnostic Code 5055 from July 1, 2012, as the Veteran exhibits chronic residuals consisting of severe painful motion or weakness in his right knee based on the collective findings in the treatment records and examination reports. The Board acknowledges that the VA examiners deemed the Veteran's residuals as "intermediate." Affording the benefit of the doubt to the Veteran, the Board will rely on the collective findings that the right knee exhibits chronic residuals consisting of severe painful motion or weakness in his right knee. Indeed, he has continuously reported increased right knee pain, and he needs some assistive device, to include a brace, a cane, and more recently, a scooter. After the temporary total rating, 60 percent is the maximum schedular rating allowed under Diagnostic Code 5055 for knee replacement. 38 C.F.R. § 4.71a. Diagnostic Code 5055 suggests rating intermediate degrees of symptoms by analogy under 5256, 5261, and 5262. The Board observes, however, 60 percent is also the highest rating available under Diagnostic Code 5256 for ankylosis, so the Veteran could not receive a higher rating on that basis. Additionally, according to a recent General Counsel opinion, separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). The Board notes, however, in the present case there is no evidence that a compensable rating is warranted under the criteria of Diagnostic Codes 5260 and 5261 given that the Veteran's extension was normal and flexion was limited to 105 degrees at most, thus such opinion is inapplicable. The Board has also given consideration to the possibility of assigning separate evaluations for the Veteran's knee disability under Diagnostic Codes 5003 and 5257, which is allowed so long as the evaluation of knee dysfunction under both codes does not amount to prohibited pyramiding under 38 C.F.R.§ 4.14. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997) (a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability); VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998), 63 Fed. Reg. 56,704 (1998) (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). See also Esteban, 6 Vet. App. at 261 (1994) (separate disabilities arising from a single disease entity are to be rated separately); but see 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). The December 2013, December 2015, and February 2017 VA examination reports, however, do not reflect any objective findings of instability, or recurrent patellar subluxation/dislocation. Thus, a separate rating pursuant to Diagnostic Code 5257 would not be appropriate in this case. The Board acknowledges that the most recent February 2017 VA examiner was unable to conclude without resorting to speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over time. It appears that this was based on a lack of direct observation during flare-up and thus it would appear likely that additional examination would again fail to provide this data. The Board does note that after three repetitions, the right knee did not exhibit any additional loss of range of motion. The Board further acknowledges that the February 2017 examiner failed to provide passive range of motion findings pursuant to Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Board finds, however, remanding to provide an additional opinion and to determine whether the Veteran experiences differing range of passive motion would provide little to no probative value and cause unnecessary delay to the appeal process with no benefit to the Veteran. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Indeed, it is difficult to conceive of an instance where passive range of motion (i.e. a third party manipulating the joint) would yield more favorable results of limitation than a veteran using his or her own impaired ligaments and muscles to manipulate the joint. Furthermore, the Board finds that the Veteran did not raise any argument regarding the impact of testing as noted in Correia or how such testing could assist in proving his claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 33, 196 L. Ed. 2d 25 (2016) ("A veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying the exhaustion doctrine to uphold the Court's determination not to consider a duty to assist argument that the veteran had not raised before the Board). The Board has carefully reviewed the record and determines that there is no additional development needed for the issues decided herein. The Board has considered whether additional ratings for neurologic manifestations are warranted. Because no such manifestations have been diagnosed, additional ratings for neurological manifestations are inapplicable in this case. 38 C.F.R§ 4.124a. Given the above, the Board finds that a disability rating of 60 percent for the right knee disability is warranted as of July 1, 2012, pursuant to Diagnostic Code 5055. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (reaffirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A rating in excess of 20 percent prior to May 24, 2011 for residuals of tibia and fibula fracture with scar is denied. As of July 1, 2012, a disability rating of 60 percent is granted for right knee status post TKR. ______________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs