Citation Nr: 1753717	
Decision Date: 11/22/17    Archive Date: 12/01/17

DOCKET NO.  08-14 085	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to a rating in excess of 10 percent prior to May 8, 2012, and in excess of 30 percent after May 8, 2012, for right knee medial collateral ligament strain with osteoarthritis. 

2. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), to include on an extra-schedular basis. 


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Mariah N. Sim, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from August 1959 to August 1962.

This matter comes to the Board of Veteran's Appeals (Board) on appeal from a May 2006 rating decision issued by Department of Veterans' Affairs (VA) Regional Office (RO) in Montgomery, Alabama.
 
This case was previously before the Board in July 2014, when the Board denied the Veteran's claim for a rating in excess of 10 percent prior to May 8, 2012. The Veteran appealed the July 2014 Board decision, and a memorandum decision vacating the Board decision was issued by the U.S. Court of Appeals for Veterans Claims in January 2016. This claim came before the Board again in February 2017. At that time, the Board remanded the claim for further development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to a TDIU is REMANDED to the Agency of Original Jurisdiction (AOJ) and addressed in the REMAND portion of the decision below.  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. Prior to May 8, 2012, the evidence of record shows that at worst, the Veteran's extension was to limited to 10 degrees, flexion was to 110 degrees, with no subluxation or lateral instability.  

2. After May 8, 2012, the evidence of record shows that at worst, the Veteran's extension in the right knee was to 20 degrees, flexion to 80 degrees, with no subluxation or lateral instability.  

CONCLUSION OF LAW

A rating in excess of 10 percent prior to May 8, 2012, and a rating in excess of 30 percent after May 8, 2012, for right knee medial collateral ligament strain with osteoarthritis based on limitation of motion, or residuals or symptoms of meniscectomy, is not warranted.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5259-5261 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Initially, the Board notes that VA issued legally conforming VCAA notice letters in April 2008 and November 2015.

Additionally, VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2017).  VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C. § 5103A (2012) and 38 C.F.R. § 3.159 (c) (2017).  Relevant service treatment and other medical records have been associated with the claims file. Also, the Veteran was afforded VA examinations in May 2006, May 2012, October 2016, May 2017, and June 2017, which are fully adequate for decision-making purposes.  Hence, the duties to notify and to assist have been satisfied.

II. Increased rating 

The Veteran contends his right knee disability based on limitation of extension warrants a rating in excess of 30 percent after May 8, 2012, and a rating in excess of 10 percent prior to May 8, 2012. The Veteran's right knee instability is separately rated (10 percent from June 16, 1961).  

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant, 38 C.F.R. § 4.3. Functional impairment is to be assessed on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods, based on facts found.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

A 10 percent rating is to be assigned when flexion of the leg is limited to 60 degrees, a 20 percent rating when flexion is limited to 30 degrees, and a 30 percent rating when flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, Code 5260.

A 10 percent rating is to be assigned when extension of the leg is limited at 10 degrees, a 20 percent rating when extension is limited at 15 degrees, a 30 percent rating when extension is limited at 20 degrees, a 40 percent rating when extension is limited at 30 degrees, and a 50 percent rating when extension is limited at 45 degrees.  38 C.F.R. § 4.71a, Code 5261.

Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion.  See 38 C.F.R. § 4.71a, Plate II.

Under Diagnostic Code 5259, a 10 percent rating is to be assigned for cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a, Code 5259 (2017).

In addition to separate ratings being assignable for arthritis with limitation of motion and for instability, separate ratings may also be assigned for compensable limitations of flexion and extension, each.  VAOPGCPREC 9-2004.  

A November 2005 VA treatment record indicates that the Veteran reported he had injured his right knee in the 1960s and had 4 subsequent surgeries during the previous 7 to 8 years. The Veteran reported having pain in both knees, with generalized pain and swelling in the right knee. On physical examination, the Veteran lacked 5 degrees in extension, had 120 degrees of flexion, with no medial or lateral laxity. The treatment provider noted that the Veteran had a healed medial incision, 1+ varus deformity, a positive tibial step off, that the Veteran could not "relax very well," and the provider did not detect a Lachman or Pivot. On this date he was assigned a diagnosis of osteoarthritis of the right knee. No report of flare-ups or testing during flare-ups was noted on this date.

At a May 2006 VA examination, the Veteran reported that he had long-standing problems with his right knee, which had required three or four prior surgeries, with pain and swelling. He reported flare-ups, especially after prolonged periods of weight-bearing. He reported that his right knee pain interfered with his daily activities, but that he was independent in his daily living. The Veteran was noted to use a cane. 

On physical examination, the examiner noted a well healed surgical scar medially. Upon repetitive range of motion testing, the Veteran's right knee lacked 10 degrees from full extension with 125 degrees of flexion. Some increase in pain was noted on motion, with a generalized tenderness to palpitation, and a slight valgue alignment of the knee. The examiner noted guarding but no definite ligamentous laxity was demonstrated at that time. Further, the examiner noted that x-rays were obtained in November 2005, which revealed degenerative changes. On this date he was assigned a diagnosis of medial collateral ligament strain of the right knee with degenerative joint disease. 

May 2006, October 2006, and November 2006 VA treatment records indicated that the Veteran lacked 5 degrees of extension, had 110 degrees of flexion, no medial or lateral laxity, and knee extension to 30 degrees of flexion in his right knee. There was no pivot or patellofemoral grind. On physical examination the treatment providers noted that the Veteran had a healed medial incision, fullness posteriorly, with intact sensation and had vascular intact. Further, the treatment providers noted a soft 3 centimeter by 3 centimeter mass on the anterior lateral aspect of the right knee lateral to the patella tendon. No effusion was noted. No reports of flare-ups or testing during flare-ups were noted on this date. On these dates he was assigned a diagnosis of osteoarthritis of the right knee.

In April 2012, the Veteran submitted a statement wherein he reported that his right knee severely interferes with his daily activities as due to severe pain in his left ankle and right hip as secondary to his right knee. He reported additional severe muscle pain and complete leg pain resulting from his right knee injury, which also caused weakness to his entire body. He reported needing assistance with most daily living activities, and that his pain never decreases. 

At a May 2012 VA examination, the Veteran reported several knee surgeries, knee injections, and chronic swelling of the knee. He stated the medications helped decrease the pain but not the swelling. He reported pain of 5 to 7 out of 10 that lasted about 4-5 hours per day, and more on days with flare-ups. He reported exacerbated symptomatology due to weather, prolonged walking, standing or sitting for more than 45 minutes to an hour. The Veteran reported flare-ups, that hurt more when stirred that felt like toothaches, occurring several times per month, resulting in 8 or 9 out of 10 in pain. Further, he reported cramping in his right leg at night. He denied use of a brace, reported he walked with a cane, and reported he was able to perform daily living activities. 

On physical examination, the Veteran was noted to have 90 degrees of flexion with no evidence of pain on motion, 20 degrees of extension with no evidence of pain on motion, 80 degrees of flexion after repetitive use, and 15 degrees of extension after repetitive use. The examiner noted weakened movement, excess fatigability, pain, swelling, and interference with sitting, standing, and weight-bearing. No instability was noted. The examiner noted that the Veteran did not have any meniscal conditions or surgical procedures for a meniscal condition, and also noted that the Veteran had not had a meniscectomy, nor any residual signs and/or symptoms due to a meniscectomy. The examiner further noted the Veteran did not have a total knee joint replacement, and the Veteran was offered a joint replacement surgery but refused due to possible negative surgical results. The examiner did note that the Veteran had arthroscopic or other knee surgery for his right knee on 3 separate occasions, as well as an open knee surgery ligament repair with debridement, with no residual signs and/or symptoms due to arthroscopic or other knee surgeries. A scar related to the Veteran's surgeries was observed, and was found to be stable as well as smaller than 6 square inches. On this date he was assigned a diagnosis of medial collateral ligament strain of the right knee. 

A September 2016 VA treatment record indicates that the Veteran reported chronic pain in his right knee, for which his medication was ineffective. He also reported a previous right knee meniscus surgery. No further physical examination for his right knee was conducted on this date.

At an October 2016 VA examination, the Veteran reported worsening of his right knee pain, stiffness, and "giving away" resulting in problems balancing, use of a cane for support during ambulation, and worsened instability with ambulation. He reported swelling, and increased warmth during flare-ups which limited his ability to walk. He denied any functional loss or functional impairment of the joint or extremity. Constant use of a cane was reported. 

On physical examination, the examiner noted flexion to 120 degrees, extension to 120 degrees, with pain on motion for both. It was also noted that the limited range of motion itself did not contribute to a functional loss. The examiner noted evidence of pain with weight-bearing, pain on flexion and extension, moderate localized tenderness or pain on palpation of the joint on the mid and lateral surface of the knee, and that the Veteran was not tested for range of motion after repetitive use.  The examiner did not test repetitive use for the right knee due to the Veteran's pain and discomfort during range of motion testing. No ankylosis was noted and slight subluxation on the right knee was noted. The examiner noted that right instability was indicated, but the Veteran was unable to perform at testing. The examination was not conducted during a flare-up. The examiner noted weakened movement, instability of station, disturbance of locomotion, interference with sitting and standing, as additional contributing factors of disability. On this date, the Veteran was assigned a diagnosis of osteoarthritis of the right knee, as well as a right knee meniscal tear from 1978.

The examiner noted that the Veteran's right knee had a meniscal tear, frequent episodes of joint "locking," frequent episodes of joint pain, and frequent episodes of joint effusion. The examiner noted that the Veteran underwent an arthroscopic meniscal repair in 1978, and did have a scar related to the surgery. No residual signs or symptoms due to meniscectomy, arthroscopic, or other knee surgery was noted or reported. 

At a June 2017 VA examination, the Veteran reported constant pain in his right knee, and very painful flare-ups about 2 to 3 times monthly with unusual swelling and tightening lasting a day to a day and a half. He reported that his knee would lock up occasionally, and that if he walked on uneven ground he felt as though his knee might give out. He reported using his cane at all times, and that his brother does the house and yard work, as well as driving the Veteran to places. Further, the Veteran reported additional functional loss or functional impairment resulting in an inability to walk long or fast, and inability to bend his knee.

On physical examination, the Veteran lacked 20 degrees of extension and had 80 degrees of flexion.  The limited range of motion was noted to contribute to functional loss, resulting in difficulty kneeling and squatting. Pain on flexion and extension was noted, with pain on weight-bearing and localized tenderness or pain on palpitation of the joint or associated soft tissues. Repetitive use testing was not performed as the Veteran cited knee pain. The examiner noted no additional contributing factors of disability, no history of recurrent subluxation, slight lateral instability, and a history of recurrent effusion of about 2 to 3 times monthly. Instability was reported by the Veteran but unable to perform as due to risk of injury or perceived injury. 

The examiner noted that the Veteran did have a meniscus (semilunar cartilage condition), with a right knee meniscal tear, and indicated that a meniscectomy was conducted in the 1970's, as well as a video arthroscopy in 2001. A surgical scar was observed on the right knee, measured at 19 cm by 1 cm. The examiner noted that there was functional impact that impacted the Veteran's ability to stand for a prolonged time, walk, squat, and kneel. Next, the examiner noted that a functional loss test with repetitive use testing and/or flare-ups could not be determined unless a flare-up occurs during examination. The Veteran was not noted to have and did not report a flare-up during this examination. Pain with weight-bearing was noted for the right knee. On this date, the Veteran was assigned a diagnosis of degenerative arthritis. 

Prior to May 8, 2012, the evidence of record shows that at worst, the Veteran's extension was to 10 degrees, flexion was to 110 degrees, with no subluxation or lateral instability. This does not support a rating in excess of 10 percent for limitation of motion based on extension. There is no indication that extension was limited to 15 degrees, which would be required for a 20 percent rating. Although a separate rating could be assigned for limitation of flexion of the right knee, the examinations show that flexion at worst has been to at least 110 degrees, and such limitation does not warrant a compensable rating. 38 C.F.R. § 4.71a, DC 5260, 5261 (2017). The symptoms and related functional impairment the Veteran describes do not meet the schedular criteria for a rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis based on limitation of motion.  Accordingly, the Board finds that a schedular rating in excess of 10 percent for right knee medial collateral ligament strain with osteoarthritis based on limitation of motion is not warranted

After May 8, 2012, the evidence of record shows that at worst, the Veteran's extension in the right knee was to 20 degrees, flexion to 80 degrees, with no subluxation or lateral instability.  This does not support a rating in excess of 30 percent for limitation of motion based on extension. There is no indication in the record that extension is limited to 30 degrees, which is required in order to assign a 40 percent rating.  Although a separate rating could be assigned for limitation of flexion of the right knee, the examinations show that flexion at worst has been to at least 80 degrees, and such limitation does not warrant a compensable rating. 38 C.F.R. § 4.71a, DC 5260, 5261 (2017). The symptoms and related functional impairment the Veteran describes do not meet the schedular criteria for a rating in excess of 30 percent for right knee medial collateral ligament strain with osteoarthritis based on limitation of motion.  Accordingly, the Board finds that a schedular rating in excess of 30 percent for right knee medial collateral ligament strain with osteoarthritis based on limitation of motion is not warranted. Id. 

Next, for the entire period on appeal, the symptoms do not meet the schedular criteria for a compensable rating for a cartilage, semilunar, removal of, symptomatic under Diagnostic Code 5259. The medical evidence of record consistently shows that the Veteran has a well healed scar for right knee surgeries, with no residual signs and/or symptoms due to a meniscectomy. 38 C.F.R. § 4.71a, DC 5259 (2017). 

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, for the entire period on appeal, an increased evaluation for the Veteran's right knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions, and that the pain is chronic and consistent.  On this record, however, the Board finds that the effect of the pain in the Veteran's right knee is contemplated in the currently assigned evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. During the afforded VA examinations, muscle strength was found to be normal, and instability was not found upon testing. Considering the results of the VA examinations in light of the Veteran's overall disability picture as shown in the record, including the reported flare-ups with pain, the disability does not more nearly approximate the criteria for a higher evaluation at any time during the pendency of this appeal.  

Lastly, functional loss due to flare-ups could not be tested as a flare-up is required during examination for appropriate testing. Throughout the record, the Veteran has been afforded multiple VA examinations, during which flare-ups have been reported but cannot be tested, as the Veteran has not had flare-ups at the time of examination. The Board is not required to provide an examination during a flare-up. Voerth v. West, 13 Vet. App. 117, 122 (1999). Here, the Veteran states that he suffers from flare-ups 2 or 3 times monthly, and that they last approximately a day to a day and a half in duration. Similarly to Voerth, the Veteran here has a condition that worsens only for a short period of time, which would render scheduling an examination during this short period impractical; unlike in Ardison, where flare-ups were reported to last weeks. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Next, the disability ratings for the knee do not specifically allow for compensable ratings for conditions only lasting a short period. Voerth, 13 Vet. App. at 123. Thus, the Board properly concludes, based on the facts of record, that the medical examinations conducted accurately reflect the Veteran's disability. Id. 

The Board finds that the examiners in this case has considered all procurable and assembled data, before stating that an opinion regarding functional loss during flare-ups could not be reached. Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Further, the examiners explained the basis of their conclusions that they could not determine functional loss during a flare-up as the Veteran was not currently suffering a flare-up at the time of the examinations. Id. The inability to provide the opinion was not a limitation due to lack of expertise, insufficient information, or unprocured testing of an individual examiner. Id. Rather, the examiners ascertained and appropriately considered adequate information regarding frequency, duration, characteristics, severity, and functional loss during flare-ups as reported by the Veteran. 

The Board has considered the Veteran's claim and decided entitlement based on the evidence or record.  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) (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).

The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107  (a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286   (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination).


ORDER

A rating in excess of 10 percent prior to May 8, 2012, and a rating in excess of 30 percent after May 8, 2012, for right knee medial collateral ligament strain with osteoarthritis based on limitation of motion is denied.


	REMAND	

Here, during the appeal period, the Veteran's service-connected disabilities include medial collateral ligament strain, right knee, with osteoarthritis (10 percent disabling effective May 22, 2005, and 30 percent disabling effective May 8, 2012), medial collateral ligament strain, instability right knee, with osteoarthritis (10 percent disabling), conjunctivitis chronic bilateral (10 percent disabling), left ankle sprain with degenerative arthritis (10 percent disabling), right hip strain (10 percent disabling), appendectomy scar, varicocele, and scar on the right medial knee (all 0 percent disabling).  Because there is no single disability rated at 60 percent disabling, and there is no disability that is rated as at least 40 percent disabling with a combined total of 70 percent or more, the rating percentage criteria for TDIU consideration under 38 C.F.R. § 4.16 (a) are not met.

Although the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16 (a), a TDIU may be granted alternatively on an extraschedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities.  However, the Board is precluded from granting a TDIU on an extraschedular basis in the first instance, and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16 (b) (2014); Barringer v. Peake, 22 Vet. App. 242 (2008).  If, and only if, the Director of the Compensation Service or designee determines that an extraschedular TDIU is not warranted does the Board then have jurisdiction to decide the issue on its merits.

Here, the Board finds that there is evidence of record that suggests that the Veteran was unemployable during the appeal period.  In this regard, the Board notes that the Veteran had multiple periods of unemployment during the above appeal period.  Additionally, the Veteran stated that he was unable to work due to the severe pain from his knees. 
 
The issue of entitlement to TDIU has not been considered on an extraschedular basis under 38 C.F.R. § 4.16(b).  Thus, because there is evidence that the Veteran may have been unemployable during the appeal period, due to service-connected disabilities; the issue of entitlement to a TDIU is referred to the Director of the Compensation Service for adjudication in the first instance.

Accordingly, the case is REMANDED for the following action:

1. Refer the issue of entitlement to a TDIU to the Director of Compensation Service for consideration of assignment of an extraschedular rating for TDIU pursuant to 38 C.F.R. § 4.16 (b). 

Prior to submission of the claim to the Director of Compensation Service, prepare a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU. 

2. Readjudicate the claim. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response.

The Veteran 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. §§ 5109B, 7112 (2012).



____________________________________________
ANTHONY C. SCIRÉ, JR.
 Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2017).

Department of Veterans Affairs