Citation Nr: 1752033 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-04 829A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for loss of flexion and/or a rating in excess of 10 percent for right knee instability for mild degenerative arthritis, status post two arthroscopic surgeries with a tear of the posterior horn of the right medial meniscus (right knee disability). 2. Entitlement to a rating in excess of 30 percent for left epididymis orchitis with left hydrocele, status post hydrocelectomy (orchitis disability) on a schedular and extraschedular basis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1983 to May 1986. These claims come before the Board of Veterans' Appeals (Board) on appeal of February 2010, July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In January 2016, the Veteran's service representative withdrew that request in writing. 38 C.F.R. 20.704(e) (2017). In August 2016, the Board denied an increased rating for the orchitis disability and remanded other issues to the Agency of Original Jurisdiction (AOJ). The remand included a claim for service connection for a mental health disability. In a March 2016 rating decision, the RO granted service connection for depressive disorder with anxious distress effective the date the Veteran's claim was received and awarded a 50 percent rating. This is considered a full grant of the benefit sought on the appeal for the claim of service connection for a mental health disability. Holland v. Gober, 10 Vet. App. 433, 436 (1997). The other remanded issues have returned from the AOJ. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and in July 2017 the Court approved a Joint Motion for Remand agreed to by both parties that same month. The orchitis issue was remanded to the Board and is again before the Board for appellate review. The issue of an increased rating for the orchitis disability on a schedular and extraschedular basis is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. At all relevant times, the Veteran's service-connected right knee disability has been manifested by motion pain, locking, normal extension, and limitation of flexion to 125 degrees at worst. 2. At all relevant times, the Veteran's service-connected right knee disability has been manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for loss of flexion for mild degenerative arthritis, status post two arthroscopic surgeries with a tear of the posterior horn of the right medial meniscus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261 (2017). 2. The criteria for a 10 percent rating, but no higher, for right knee instability due to mild degenerative arthritis, status post two arthroscopic surgeries with a tear of the posterior horn of the right medial meniscus have been met since November 2, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any other 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Under Diagnostic Code 5257, the criteria for 10 percent rating is either slight recurrent subluxation or slight lateral instability. Moderate recurrent subluxation or moderate lateral instability is rated 20 percent disabling. Severe recurrent subluxation or severe lateral instability is rated 30 percent, which is the maximum rating available. Under Diagnostic Code 5260, flexion of the knee limited to 45 degrees is rated at 10 percent. Flexion limited to 30 degrees is rated 20 percent, and flexion limited to 15 degrees is rated 30 percent, the maximum schedular rating under that Diagnostic Code. 38 C.F.R. § 4.71a. Limitation of knee extension under Diagnostic Code 5261 is rated noncompensable or zero percent with extension limited to 5 degrees. Extension limited to 10 degrees is rated 10 percent. Extension limited to 15 degrees is rated 20 percent. Extension limited to 20 degrees is rated 30 percent. Extension limited to 30 degrees is rated 40 percent. Extension limited to 45 degrees or greater is rated 50 percent, which is the maximum rating available. Id. Normal range of knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A Precedent Opinion of the VA General Counsel has held that that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 FR 59988) (2004)). A Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided when additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (Aug. 14, 1998). By way of background, the right knee disability was service connected as internal derangement of the right knee with a complex tear of the right medial meniscus and chondromalacia patella. Since service connection became effective in November 2003, the Veteran has been diagnosed with degenerative arthritis of the right knee. He has also undergone two arthroscopic surgeries for a tear of the posterior medial meniscus. The Veteran is thus currently service connected for mild degenerative arthritis, status post two arthroscopic surgeries with a tear of the posterior horn of the right medial meniscus. He currently receives a 10 percent rating under Diagnostic Code 5260 (limitation of flexion) and a separate 10 percent rating under Diagnostic Code 5257 (right knee instability). The Veteran has stated that his right knee disability continues to worsen and he is overwhelmed with the challenge of dealing with the excruciating pain on a daily basis and altering his daily life. He is unable to fully bend his leg. The leg pain prevents him from enjoying activities of life, causes stress, and affects his mood. The pain causes sleep difficulties and this causes a lack of concentration and loss of energy in the Veteran. He often goes home from work during the workday to rest the right knee. The Veteran, who works for the United States Post Office, has a job requiring him to walk and stand excessively, bend repeatedly, and squat every day as well as unloading mail and lifting and carrying heavy parcels and tubs of mail. At least twice a day he must lie down for temporary relief. A co-worker, W.A., reports that she has noticed the Veteran walking with a limp and favoring his knee because of the pain. She has also observed some days when he avoids walking at all because the pain is too great. The Veteran complains of the acute pain in his knee. She has seen him take medication for the pain as well as noticing him changing positions when standing or sitting to get more comfortable with his knee. In a February 2010 VA examination, the Veteran complained of progressive pain, stiffness, giving way, instability and weakness. There were no episodes of locking, dislocations, or subluxations. There was effusion, but no symptoms of inflammation. He reported severe, daily flare-ups lasting for hours, triggered by prolonged walking/standing, squats, stairs, jogging, jumping, or lifting/carrying. He experienced partial relief with rest and activity modification. He has not lost any time from work due to his right knee disability. Upon examination, the Veteran had an antalgic gait with poor propulsion. The VA examiner noted subpatellar and medial joint line tenderness. The McMurray's test was positive. The range of motion was from 0 degrees to 125 degrees. There was objective evidence of pain but no additional limitations in his range of motion with repetition. The right knee was stable. He demonstrated full strong extension and very good flexion putting his shoe back on. In July 2015, a physician submitted a report regarding the Veteran's right knee disability. The physician diagnosed a right knee meniscus tear and right knee osteoarthritis. Both knees had a range of motion from 0 degrees to 140 degrees. There was no change after repetition. Deep flexion was painful. Both knees were observed to have pain and swelling but without any functional loss, history of recurrent subluxation, or lateral instability. The physician also stated there was no joint instability. In a December 2016 VA examination, the Veteran reported that since the second surgery, his right knee disability has progressively deteriorated with constant pain and progressive right knee dysfunction requiring more periods of rest and for more length of time. Although he is a postmaster, the Veteran needs stand for hours and walk back and forth repeatedly. Nevertheless, he needs to frequently sit because of his right knee pain. The Veteran has not used any sick time due to the right knee pain. He feels that the right knee started becoming unstable around 2012 progressively increasing in frequency and/or intensity. He frequently feels that the right knee buckles and/or gives out mainly when he starts to walk first thing in the morning. He achieves stabilization of the right knee with a brace but even then, he might still have the sensation of the right knee giving out in the middle of the day. He has not fallen due to the instability but on several occasions, he has been on the verge of doing so. He also feels at times the right knee locking when he starts to walk or changes his position from sitting to standing, although many times such locking occurs unpredictably. The Veteran has never fallen due to locking, which only lasts a very short time (i.e. a second or two). The Veteran reported flare-ups occurring with prolonged walking, standing, or sitting with the knee bent as well as squatting or pivoting. A change in weather also affects the knee. Upon examination, the Veteran had normal extension and flexion bilaterally (0-140 degrees). The Veteran did exhibit pain with both flexion and extension for the right knee but only flexion for the left knee. In addition, upon repetition, the Veteran's range of motion decreased to 0-130 degrees. There was no decrease with the left knee after repetition. In the VA examiner's opinion, swelling, instability of station, disturbance of locomotion, and interference with standing were additional factors contributing to the right knee disability. Muscle strength was normal and there was no history of subluxation. There was a history of slight lateral instability and recurrent swelling occurs with more than mildly increased physical activities. The right knee was stable upon joint stability testing except for a 1+ medial instability (0-5 millimeters). The left knee was stable. Throughout the period on appeal, the Veteran's treatment records and lay statements reflect symptoms consistent with those noted on VA examination. After a review of the record, the Board notes that the Veteran's limitation of motion of the right knee is noncompensable under Diagnostic Codes 5260 and 5261, even considering his complaints of painful motion and flare-ups. The Veteran's current 10 percent rating for loss of flexion for degenerative changes of the right knee is based solely on painful motion pursuant to 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Otherwise, his ranges of motion do not approach a compensable level, much less the criterion for a 20 percent rating. Throughout, the record reflects that the Veteran had normal extension or hyperextension and flexion to at worst 125 degrees. Pain without accompanying functional limitation cannot serve as the basis for a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011). Stated another way, a range of motion may be possible beyond the point when pain sets in, but for rating the disability, only to the extent pain limits motion should be considered. Accordingly, a higher rating is not warranted on the basis of limitation of motion. The 10 percent rating presently assigned in the absence of compensable limitation of motion adequately addresses the subjective complaints of functional impairment (such as pain) and the objective findings on examination. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); see also 38 C.F.R. § 4.40, 4.45, 4.59. Accordingly, higher or separate ratings under Diagnostic Code 5260 and 5261 are not warranted. The Veteran is also service connected separately for right knee instability at 10 percent, effective in 2016. The Board finds that the appropriate effective date for the 10 percent rating for instability of the right knee is November 2, 2009, the date this claim was filed. While the Veteran has had normal stability testing at times during this appeal, he did report experiencing instability at the 2010 examination. In fact, the Veteran complained of instability of the right knee at least as early as September 2008. Resolving doubt in the Veteran's favor, the Board finds that instability was present throughout the appeal period. As the complaints of instability began more than one year prior to the date of claim, the date of claim is the proper effective date for the award. 38 C.F.R. § 3.400(o) (2017). The medical and lay evidence does not demonstrate that a rating in excess of 10 percent is warranted at any time as the evidence establishes the instability is slight. The right knee was stable upon joint stability testing except for a 1 + medial instability (0-5 millimeters). The Veteran described knee instability mainly upon arising from his bed in the morning. With a brace, he achieves stabilization of the right knee. He has not had any falls due to the instability. Thus, after a review of the evidence, the Board has determined that the Veteran's right knee disability results in slight instability and does not present a disability picture that more nearly approximates a 20 percent rating (moderate lateral instability) than a 10 percent rating. The Board recognizes that the Veteran's disability includes an additional symptom, i.e., a feeling of locking. The locking of the right knee, however, occurs unpredictably. He has never fallen due to such locking, and it only lasts a very short time (i.e., a second or two). The residuals of the torn meniscus are already specifically included as part of the award for his service connected disability. To assign a separate rating under Diagnostic Code 5258 or Diagnostic Code 5259 when the same symptoms are already rated under another Diagnostic Code would violate the rule against pyramiding. 38 C.F.R. § 4.14 (evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided). Further, the symptoms do not create a marked interference with employment resulting in the need for a referral for an extraschedular rating. 38 C.F.R. § 3.321(b)(1) (2017). The Veteran reported not having to use sick time due to his knee. In addition, frequent hospitalizations for the right knee during the appeal period are not shown or alleged. As noted above, the Veteran is competent to attest to things he experiences through his senses, such as pain. See Layno 6 Vet. App. at 469-71. In this case the Veteran has stated his right knee disability results in pain, stiffness, locking, and limitations on walking, carrying or lifting, and squatting. The lay statements do not indicate that the Veteran has flexion limited to 30 degrees or less, or extension limited to 10 degrees, to warrant a higher or separate service connection for the right knee. The Veteran has reported experiencing instability of his knees; however, the only joint stability testing of record was at the VA examinations and showed no instability except for 1+ (0-5 millimeters) which equates to slight medial instability. While the Veteran may experience a feeling that his knees may give way or are unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence and severity of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity other than slight medial instability. Hence, the evidence is against a higher rating under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming 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 Entitlement to a rating in excess of 10 percent for loss of flexion of the right knee due to mild degenerative arthritis, status post two arthroscopic surgeries with a tear of the posterior horn of the right medial meniscus, is denied. Entitlement to a 10 percent rating, but no higher, for instability of the right knee due to mild degenerative arthritis, status post two arthroscopic surgeries with a tear of the posterior horn of the right medial meniscus, is granted effective November 2, 2009. REMAND The Veteran has been service connected for his orchitis disability since separation from service. He filed his current claim for an increased rating in February 2011. During the course of this claim, the veteran underwent surgery for his orchitis disability in April 2011. As a result, the Veteran received a temporary total disability rating (100 percent) for surgical convalescence related to his orchitis disability from April 4, 2011 to May 31, 2011. Since the Veteran received the maximum rating possible during the period of surgical convalescence, the Board has excluded this periods from its analysis. As noted in the Introduction, in its August 2016 decision the Board denied an increased rating for the orchitis disability based upon a schedular rating but remanded consideration of a referral for an extraschedular rating to the Director of Compensation under 38 C.F.R. § 3.321(b)(1) because there was evidence the orchitis disability possibly caused hypogonadism. The Court remanded the Board's denial of an increased schedular evaluation in the Joint Motion for a Remand and Order dated July 2017. As discussed below, the Board has determined a remand is necessary and finds the issues of schedular and extraschedular ratings for the orchitis disability are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered), The Board's remand required the RO to consider if service connection for separate disabilities (e.g. the orchitis disability and hypogonadism) could be assigned or whether a referral for extraschedular consideration was warranted. A VA examination occurred in December 2016, but the VA examiner never offered an opinion as to whether the Veteran had hypogonadism and if so, whether it was related to the orchitis disability. A previous remand confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board still does not have sufficient information so that the Board's evaluation of the orchitis disability is a fully informed one. In addition, the Veteran's treating physician submitted a letter in August 2017 stating the Veteran now has decreased libido and decreased erection turgor secondary to the orchitis disability. The Board interprets these findings to mean the Veteran may now have erectile dysfunction. Because of this potential new disability, the Board has determined that rather than remanding for an addendum by the December 2016 VA examiner, once the records development is completed, a VA medical examination and accompanying medical opinions should be afforded to the Veteran. The Joint Motion for Remand suggests that an additional opinion is also necessary as an August 1999 VA examination noted the Veteran needed a tuberculosis test to make sure his epididymitis was not from tuberculosis, and as some VA records referred to his disability as "TB of the testes." The examiner should discuss whether the Veteran has tuberculosis. While it appears some of records of the treating physician, Dr. C. S-C., have been associated with the file, it does not appear all of the records have been provided. With the exception of one record from January 2014, there are no records of treatment since the surgery 2011 and its immediate follow up. Accordingly, the RO should request the Veteran provide or authorize VA to obtain Dr. C. S-C.'s records not already of part of the file. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Ongoing VA medical records should also be obtained. See 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit or authorize VA to obtain medical records of Dr. C. S-C. not already of record. All efforts to obtain these records must be documented in the file. 2. Obtain relevant VA treatment records dating from January 2017 to the present. All attempts to obtain these records should be documented in the file. 3. After the record development is completed, provide the Veteran with a genitourinary examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner should detail the symptoms and severity of the orchitis disability. The examiner is asked to determine whether the Veteran has hypogonadism and/or erectile dysfunction. If either disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability is part of, caused by, or aggravated by the Veteran's service-connected orchitis disability. The examiner should also address whether the Veteran has tuberculosis, to include inactive tuberculosis. If additional examination or testing is required to answer this question, then such should be undertaken. 4. Consider whether referral for extraschedular consideration is warranted. 5. After the development requested is completed, readjudicate the claim for an increased rating for the orchitis disability on a schedular and extraschedular basis. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs