Citation Nr: 1753461 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 09-31 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of reconstruction of the left knee. 2. Entitlement to an initial rating in excess of 10 percent for left knee instability. 3. Entitlement to an initial compensable rating for surgical scars of the left knee. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1979 to December 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran filed a Notice of Disagreement (NOD) in February 2009 and the RO issued a Statement of the Case (SOC) in August 2009. The Veteran submitted a timely VA 9 in August 2009. The RO issued a Supplemental SOC in April 2010. In July 2012, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired. A transcript of this hearing is in the claims file. In December 2012, the Board remanded the case for further development. The RO issued a Supplemental SOC in February 2013. In September 2014, the Board denied the Veteran's claims of entitlement to service connection for varicose veins and entitlement to a rating higher than 10 percent for residuals of reconstruction of the left knee (left knee disability). The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2015, the Court granted the Joint Motion for Remand (JMR) filed by representatives for both parties, vacating the Board's decision regarding these issues, and remanding the claims to the Board for further proceedings consistent with the JMR. Then, because the VLJ who held the original hearing had retired, the Veteran was offered an opportunity to have another hearing with a new VLJ. The Board remanded the claims in September 2015 to arrange a new hearing, and it was held in May 2016. A copy of the transcript is associated with the claims file. In July 2016, the Board remanded the claims of entitlement to service connection for varicose veins and entitlement to a rating in excess of 10 percent for residuals of reconstruction of the left knee (left knee disability). The RO granted the Veteran's claim of entitlement to service connection for varicose veins by a November 2016 rating decision and assigned a 10 percent evaluation for each extremity, effective July 16, 2008. As the Veteran did not disagree with the initial rating or effective date assigned (see Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977)), only the left knee claim remains on appeal. Id. A Supplemental SOC was issued in November 2016 continuing the 10 percent evaluation of the left knee. The matter was again remanded in April 2017 for further development. A July 2017 Supplemental SOC continued the 10 percent evaluation of the left knee. Subsequently, in an August 2017 rating decision, the RO granted a 10 percent rating for left knee instability and noncompensable ratings for left knee scars. The Veteran submitted a statement in September 2017 asserting entitlement to ratings in excess of those assigned in the most recent rating decision. As the Board considers these separate ratings as part and parcel of the left knee increased rating claim, the adequacy of the ratings assigned is subject to current appellate review. The issues have now been returned to the Board for adjudication. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. FINDINGS OF FACT 1. The Veteran's left knee disability manifested with x-ray evidence of arthritis; flexion limited to, at worst, 85 degrees; extension limited to, at worst, 0 degrees; painful motion; and symptoms including pain, stiffness, swelling, weakness, crepitus, giving way, locking, and popping. 2. The Veteran's left knee disability manifested with anterior instability of 0-5 millimeters. 3. The objective medical evidence reflects that the left knee scarring manifested by superficial, non-linear scars of less than 929 square (sq.) centimeters (cm.) that were not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability manifested by limitation of flexion are not met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2017). 2. The criteria for a rating in excess of 10 percent for a left knee disability manifested by instability are not met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for an initial compensable rating for left knee scars are not met. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Codes 7802, 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The duty to notify has been met by way of an August 2008 letter to the Veteran, sent prior to the issuance of the January 2009 rating decision on appeal. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of service treatment records, post-service private and VA treatment records, and the Veteran's statements. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records. The Board also finds there has been substantial compliance with the April 2017 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Thus, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). General rating principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For an initial rating claim, consideration will be given to "staged ratings" since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating shall be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different Diagnostic Codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Increased rating for left knee disability 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. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness, fatigability, incoordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As will be further explained below, the Board has considered the Veteran's complaints, and was cognizant of the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 in assigning the ratings herein. Diagnostic Code 5010 rates arthritis due to trauma and directs that the condition be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code for the specific joint involved - in this case the left knee. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability of the knee. A 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A 30 percent rating is warranted for severe knee subluxation or lateral instability. The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Diagnostic Code 5260 provides ratings based upon the limitation of flexion in the leg. A noncompensable rating is assigned when flexion is limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. Id. Diagnostic Code 5261 provides ratings based upon the limitation of extension in the leg. A noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. Id. The VA General Counsel held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23- 97. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The Veteran is also rated for surgical scars (medial) on his left knee. Diagnostic Code 7802, which evaluates scars not of the head, face, or neck that are superficial and nonlinear. 38 C.F.R. § 4.118. Under this diagnostic code, a maximum 10 percent rating is warranted for scars measuring 929 sq. cm. or greater. A separate rating under Diagnostic Code 7805 was assigned for residual scars on the left knee and the bilateral fifth toes. Diagnostic Code 7805 calls for scars and any other disabling effects not considered under Diagnostic Codes 7800-7804 to be evaluated under an appropriate diagnostic code. The Board notes that during the pendency of the appeal, the applicable rating criteria for evaluating scars were amended, effective October 2008. See 73 Fed. Reg. 54708 (September 23, 2008). As to claims filed before October 23, 2008, 38 C.F.R. § 4.118 clarifies that a veteran whose scars were rated by VA under Diagnostic Codes 7800-7805 in effect prior to October 23, 2008, may request review under the revised Diagnostic Codes. See 77 Fed. Reg. 2909 (January 20, 2012). In the instant case the Veteran's claim was received in September 2007 and he has not requested that his scars be rated under the revised criteria. Thus, the criteria in effect prior to October 23, 2008 may be applied for the Veteran's benefit. Limitation of motion In the present case, a rating in excess of 10 percent under Diagnostic Codes 5260 or 5261 is not warranted because the evidence does not show a sufficient limitation of range of motion for compensation. Over a series of five examinations between September 2008 and April 2017, the flexion of the Veteran's knees has measured, at worst, to 85 degrees. Extension has consistently been measured at 0 degrees (normal). In the most recent VA examination report from April 2017, the Veteran's left knee range of motion was measured from 0 to 100 degrees flexion and 100 to 0 degrees in extension in both active and passive movement. Pain was noted upon examination but did not result in functional loss. The Veteran reported flare-ups four to five times per month resulting in pain, weakness, and fatigability which significantly limited functional ability. The examination was not conducted during a flare-up but the examiner stated that the findings were medically consistent with the Veteran's statements describing functional loss during flare-ups. The objective medical evidence reflects that the Veteran's greatest limitation of range of motion was from 0 to 85 degrees in flexion, which would result in a noncompensable evaluation. Neither limitation of flexion nor extension was compensable pursuant to Diagnostic Code 5260 or 5261 at any time during the appeal period. Therefore, higher ratings under these Diagnostic Codes are not warranted. However, the evidence of record, including the competent lay statements of the Veteran, reflects the limitation of motion and functional impairment due to pain resulting in reduced ability to use his left knee. Thus, with resolution of reasonable doubt in the Veteran's favor, the Board finds that the currently assigned 10 percent rating, but no higher, is appropriate for painful motion of the left knee under Diagnostic Code 5003 and 38 C.F.R. § 4.59 based on limitation of motion. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's left knee pain and resulting functional difficulties are compensated by the 10 percent rating assigned for arthritis with painful motion. Functional impairment associated with painful motion includes limited walking, standing, squatting, kneeling and sitting; difficulty with stairs; stiffness; lack of endurance; and use of a cane and brace. While acknowledging that the Veteran's pain may at times result in functional loss beyond that objectively demonstrated by the medical evidence, and even when such functional limitations are considered, the preponderance of the evidence is against entitlement to evaluation in excess of 10 percent for limitation of motion. In this regard, given the objective findings of limitation of flexion to, at worst, 85 degrees with pain, and normal extension, the preponderance of the evidence is against a finding that the Veteran's left knee disability results in disability comparable to limitation of knee flexion to 30 degrees (the criterion for a 20 percent evaluation under DC 5260) or limitation of knee extension to 10 degrees or more (the criteria for a 10 percent evaluation or higher under DC 5261), even considering pain and other functional limitations. In this regard, the Board notes a July 2010 VA treatment record in which the Veteran described chronic intermittent left knee pain categorized as minimal. He stated that he had stopped routine exercise but not because of knee pain. While not disputing the effects of the left knee disability as described by the Veteran, the Board finds that the preponderance of the evidence reflects a severity compensated by a 10 percent evaluation for limitation of motion. Accordingly, after thorough review of the record, the Board finds that a rating in excess of 10 percent for left knee limitation of motion is not warranted. Instability However, a separate rating for instability has been assigned for the left knee, evaluated as 10 percent disabling as of April 19, 2017 under Diagnostic Code 5257. Initial VA examination reports in September 2008 and March 2010 found no evidence of instability. In January 2013, the examiner noted instability reported by the Veteran but testing resulted in normal measurements. The September 2016 VA examination report found no instability. Subsequently, upon examination in April 2017, 0-5 millimeters of anterior instability were noted; all other instability measurements were normal. Thus, while the Board has considered the Veteran's lay statements regarding the instability of his knee, this evidence is outweighed by the objective medical evidence of record that first reflects minimal instability in April 2017. Although he used a brace and a cane, there is no evidence of chronic falls and the Veteran's complaints centered around limitation of motion, stiffness, and pain. The September 2016 VA examination found no objective signs of instability while the April 2017 VA examination measured 0-5 centimeters of anterior instability. Accordingly, with resolution of reasonable doubt in the Veteran's favor, a 10 percent rating is appropriate for mild instability effective April 19, 2017. A higher rating of 20 percent for moderate instability is not supported by the lay or medical evidence of record. Scars The Veteran's scars are currently rated as noncompensable under Diagnostic Codes 7802 and 7805. The Board finds the noncompensable ratings appropriate for the Veteran's left knee scars. Under Diagnostic Code 7802 for superficial scars that do not cause limited motion, a compensable rating is not available because the Veteran's scars cover an area of less than 929 square centimeters. Under Diagnostic Code 7805 for other effects of a scar, the VA examination reports of record do not reflect that the Veteran's scars result in any limitation of motion or loss of function. The Veteran recently alleged that his scars were painful in a September 2017 statement; however, the objective medical evidence shows his scars have been asymptomatic throughout the pendency of the claim. The Board finds that the recent statement concerning painful scars lacks credibility as it is inconsistent with the medical evidence of record and the Veteran's prior statements. See, e.g., Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has considered whether rating the Veteran's scars under other diagnostic codes would be more beneficial to him. Diagnostic Code 7800 does not apply because it only pertains to scars of the head, face and neck. Diagnostic Code 7801 is not applicable because the scars are superficial, not deep. Diagnostic Code 7803 is not applicable because the scars are not unstable. Diagnostic Code 7804 is not relevant because there is no credible evidence that the Veteran's scars are painful as discussed above. In evaluating this claim, the Board notes that utilization of the same manifestations under a different diagnosis and diagnostic code is to be avoided. 38 C.F.R. § 4.14. To do so is to impermissibly pyramid the ratings. See Esteban, 6 Vet. App. 259, 261. Accordingly, symptoms pertaining to limited range of motion for the left knee may not be used to support an increased evaluation for the scarring of the left knee. The Veteran is already being compensated for pain and limitation of motion of the left knee as discussed above. As the evidence does not show that the scars meet the size requirements or manifest through any disabling effects, compensable ratings are not warranted. While the Board is sympathetic to the Veteran's condition, the scarring symptomatology does not justify a higher rating under Diagnostic Codes 7802 or 7805. The Board recognizes that the Veteran is competent to provide evidence about his left knee disability; for example, he is competent to describe experiencing pain, weakness, fatigue, and other symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Codes. Competent evidence concerning the nature and extent of the Veteran's left knee disability was provided by the VA examiners who have interviewed and evaluated him during the current appeal. The medical findings as provided in the various VA examination reports directly address the criteria under which this disability is evaluated. Thus, the competent lay evidence is outweighed by the competent medical evidence that evaluates the true extent of his disabilities. Taking into account the competent and probative evidence of record, the Board finds that the collective medical and lay evidence does not indicate that the Veteran's left knee disability meets the criteria for evaluations in excess of 10 percent for limitation of motion and 10 percent for instability; likewise, a compensable rating for left knee scars is not warranted. Accordingly, the Veteran's claim for an increased rating is denied. Other Considerations The Board has considered other potentially applicable Diagnostic Codes relating to the left knee. The record does not demonstrate evidence of ankylosis (Diagnostic Code 5256); semilunar cartilage, dislocation, or removal (Diagnostic Codes 5258 or 5259); impairment of the tibia and fibula (Diagnostic Code 5262); or genu recurvatum (Diagnostic Code 5263) attributable to the service connected disability. Application of these criteria is not appropriate, either directly or by analogy. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (Where a condition is listed in the schedule, rating by analogy is not appropriate. "An analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.') The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is considered a component of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Here, the Veteran has stated that he is unemployable and has not worked since his retirement from the service due to his left knee disability. However, the evidence reflects that the Veteran is currently employed as the mayor of his town and self-employed as the owner of an excavation business. Under these circumstances, the Board finds that a TDIU claim under Rice has not reasonably been raised in conjunction with the current claim for a higher rating, and need not be addressed herein. The Veteran has not raised any other issues with respect to the increased rating claim for his left knee, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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 residuals of reconstruction of the left knee is denied. Entitlement to an initial rating in excess of 10 percent for left knee instability is denied. Entitlement to an initial compensable rating for surgical scars of the left knee is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs