Citation Nr: 1754748 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-27 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to increases in the ratings for a left knee disability (rated 10 and 20 percent for degenerative joint disease (DJD) and residuals of medial meniscectomy, respectively) prior to November 7, 2011. 2. Entitlement to increases in the ratings for status post left knee arthroplasty (currently rated 30 percent prior to June 1, 2014, and 60 percent from that date (with additional periods of 100 percent ratings following multiple left knee replacements)), to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Matta, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1959 to September 1961. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO), which continued separate 10 and 20 percent ratings for the Veteran's left knee disability. Thereafter, additional rating decisions in April 2012, December 2013, June 2015, and June 2017 increased the Veteran's ratings for a left knee disability. Specifically, the April 2012 rating decision increased the rating to 30 percent, effective January 1, 2013, and a June 2017 rating decision increased the rating to 60 percent, effective June 1, 2014. [The rating decisions also granted separate 100 percent evaluations for one year following the Veteran's left knee replacements; those periods of time are not for consideration herein.] The Board notes that it is unclear whether the Veteran is currently employed. While the Court of Appeals for Veterans Claims has held that a claim for a total disability rating based on individual unemployability (TDIU) can be inferred as part of the original claim for a higher initial rating in certain circumstances, see Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curium), the Board believes that this case is different. Here, the Veteran filed a TDIU claim, which was denied in a September 2017 rating decision, following his failure to complete the forms providing evidence needed to substantiate his claim. VA can bifurcate adjudication of the TDIU and increased rating claims as long as the claimant has reasonable notice that this is being done. Locklear v. Shinseki, 24 Vet. App. 311 (2011). Here, the Veteran received independent adjudication of the TDIU issue from the RO and has not yet filed a notice of disagreement (although he still has several months to do so). Therefore, the Board's decision not to include a TDIU claim as part of this appeal does not foreclose him from pursuing the issue. In the factual and legal circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim, and, instead REFERS the Veteran to the RO should he wish to complete the necessary paperwork to file a claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (2012). The issue of entitlement to a rating in excess of 60 percent for a left knee disability on an extraschedular basis is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. Prior to November 7, 2011, the Veteran had, at most, moderate left knee instability, flexion to 100 degrees, and extension to 0 degrees, and no evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 2. From January 1, 2013, the Veteran's service-connected status post total left knee arthroplasty is shown to have produced chronic residuals of severe painful motion. CONCLUSIONS OF LAW 1. Prior to November 7, 2011, ratings in excess of 10 and 20 percent for left knee DJD and residuals of medial meniscectomy, respectively, are denied. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Codes (Code) 5003-5055, 5257 (2017). 2. From January 1, 2013, a rating of 60 percent (but no higher) for status post left knee arthroplasty on a schedular basis is warranted. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59 and 4.71a, Diagnostic Code (Code) 5003-5055 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 VA's duty to notify was satisfied by a letter in January 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's postservice VA treatment records have been secured. The RO arranged for VA knee examinations in January 2011 and May 2015. The Board finds these examinations to be adequate based on the information provided at the time of each examination, as the VA examiners considered the Veteran's subjective history and complaints, conducted thorough examinations, and provided all findings necessary to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Legal Criteria Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record 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, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Separate ratings may be assigned for separate periods based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In a claim for an increased rating in a previously service-connected disability, VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). Historically, the Veteran's service-connected left knee disability was initially evaluated as 20 percent disabling under Code 5257 (based on recurrent subluxation or lateral instability of the knee) and 10 percent disabling under Code 5003-5055. Hyphenated diagnostic codes indicate that the rating is by analogy. Here, the rating is by analogy to degenerative arthritis (Code 5003) and to knee replacement (Code 5055). Code 5257 provides for 20 and 30 percent ratings for moderate or severe recurrent subluxation or lateral instability of the knee, respectively. 38 C.F.R. § 4.71a, Code 5257. Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. Code 5260 provides a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. Code 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. Traumatic arthritis (established by X-ray findings) is rated as degenerative arthritis, and is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint affected by limitation of motion to be combined, not added, under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Codes 5010-5003. In VAOPGCPREC 9-2004 (Sept. 17, 2004), it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Separate ratings may be assigned for knee disability under Codes 5257 and 5003 where there is x-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23- 97 and VAOPGCREC 9-98. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to factors such as disability causing less movement than normal, more movement than normal, weakened movement, excess fatigability, and incoordination. The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment. Id. During the pendency of the appeal, the Veteran underwent multiple knee replacements, the first on November 7, 2011. A 100 percent rating is assigned under Code 5055 for one year following implantation of prosthesis; in this case, the Veteran is in receipt of a 100 percent rating for one year following his left total knee arthroplasties in November 7, 2011; January 1, 2012; April 18, 2013; and February 10, 2015. Following implantation, a 30 percent rating is the minimum rating available. A 60 percent rating is assigned for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. Id. His service-connected left knee replacement was reevaluated pursuant to Code 5055. Following the knee replacements, a 30 percent rating was assigned from January 1, 2013, and a 60 percent rating was assigned from June 1, 2014. Id., Code 5055. Factual Background and Analysis On January 2011 VA joints examination, DJD of the left knee with chronic knee strain was diagnosed. Since his last ratings exam in 2006, the Veteran reported significant worsening due to constant pain; he was being treated conservatively for DJD but was scheduled to see an orthopedic surgeon in February to discuss a knee replacement. He reported walking with a cane due to left knee pain. He denied any flares since his symptoms were consistent and constant. Range of motion testing of the left knee revealed flexion to 100 degrees and extension to 0 degrees, with pain and significant crepitus. McMurray's test was positive for apprehension and pain. No subluxation or instability was noted. There was no additional limitation following repetitive use testing. A February 2011 VA treatment record noted no visible swelling of the left knee and no palpable joint fluid. The Veteran reported pain with knee extension and end of range of motion, and some crepitus was noted with left knee extension. He had normal muscle strength in all compartments across his knee joint. There was pain on palpation of the medial aspect of the proximal tibia. The physician noted good medial and lateral knee instability. The Veteran underwent a left knee replacement on November 7, 2011, and a 100 percent evaluation was in effect from that date until January 1, 2013, when a 30 percent rating was assigned. A March 2013 VA treatment record noted the Veteran was status post left total knee replacement with worsening loosening symptoms. He complained of sharp, achy left knee pain across his knee, especially at night. On April 18, 2013, he underwent revision left knee replacement surgery. From that date, and prior to June 1, 2014, a 100 percent evaluation for total knee replacement was in effect; a 60 percent rating was assigned from that date. In February 2015, the Veteran again underwent a revision of his left knee replacement. In April 2015 correspondence, his private physician noted that he was rehabilitating well from the left knee surgery and that his left knee was stable. Based on this surgery, the RO granted a 100 percent evaluation from February 10, 2015; on April 1, 2016, a 60 percent rating was assigned, and that rating continues to the present. On May 2015 VA knee and lower leg conditions examination, the Veteran reported that he was doing well with his last left knee replacement. Range of motion testing of the left knee revealed flexion from 25 to 95 degrees and extension from 95 to 25 degrees due to decreased range of motion with altered gait, pain, and joint deformity consistent with prior arthroplasty of the left knee. Pain was noted on examination with weight-bearing, which was determined to cause functional loss. Tenderness to palpation was noted medially and laterally. Although there was no additional limitation following repetitive use testing, pain, weakness, and lack of endurance limited the Veteran's functional ability with repeated use. The examiner determined that there would likely be increased pain with prolonged ambulation, bending, and squatting. Additional factors contributing to the disability included less movement than normal due to ankylosis, adhesions, etc.; weakened movement due to muscle or peripheral nerve injury; deformity; disturbance of locomotion; and interference with sitting and standing. (The examiner later determined that there was no ankylosis of the left knee.) Muscle strength testing showed a decrease in muscle strength of the left knee, with active movement against some resistance. Joint stability tests were negative for recurrent subluxation, lateral instability, or recurrent effusion; however, the Veteran reported that he uses a cane at all times for stability. The examiner determined that the Veteran did not have recurrent patellar dislocation or a meniscal condition. Prior to November 7, 2011 Turning to application of the applicable rating criteria, the Board finds that the preponderance of the evidence weighs against the award of a rating in excess of 10 percent (under Code 5003-5055) or 20 percent (under Code 5257) prior to November 7, 2011, for the Veteran's service-connected left knee disability. Specifically, as there is no evidence of ankylosis of the knee, impairment of tibia and fibula, or genu recurvatum, Codes 5256, 5262, and 5263, respectively, do not apply. Although the Veteran had left knee meniscectomies, no residual signs and/or symptoms due to his meniscectomies were reported. Accordingly, a 10 percent rating under Code 5259 for symptomatic removal of semilunar cartilage or a 20 percent rating under Code 5258 for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is not warranted. In considering the criteria under Code 5257, the assigned 20 percent evaluation contemplates moderate subluxation or lateral instability. To warrant a higher evaluation, the Veteran must have had severe recurrent subluxation or lateral instability. The Board notes that, while the Veteran reported using a cane for ambulation because of knee pain on January 2011 VA examination, no instability or subluxation was noted. During February 2011 VA treatment, the physician noted good medial and lateral knee instability. Accordingly, the Board finds that the preponderance of the probative evidence weighs against a finding that the Veteran has severe left knee instability. As such, he has not met the criteria for a higher rating of 30 percent for severe recurrent subluxation or lateral instability under Code 5257. The Board has also considered whether the Veteran may be entitled to separate evaluations under Codes 5260 or 5261 for limitation of flexion or extension. The preponderance of the evidence is against a compensable evaluation for either, as extension of the left knee is not shown to be limited to 10 degrees and flexion is not shown to be limited to 45 degrees. See January 2011 VA examination (range of motion revealed flexion to 100 degrees and extension to 0 degrees, with pain) and February 2011 VA treatment record (pain with knee extension and end of range of motion). Even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a compensable rating based on functional loss for limitation of motion. Additionally, as there is no evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent rating under Code 5003 is not warranted. Based on the above findings, the Board finds that a rating in excess of 20 percent for recurrent subluxation or instability of the left knees is not warranted as there is no evidence of severe subluxation or instability. Further, a rating in excess of 10 percent for degenerative arthritis under Code 5003 is also not warranted. From January 1, 2013 The Veteran underwent a left knee replacement on November 7, 2011. In an August 2012 rating decision, the RO assigned a 100 percent rating based on the implantation; a minimum 30 percent rating was assigned effective January 1, 2013 (until a 100 percent evaluation was assigned four months later, effective April 18, 2013, and a 60 percent evaluation was awarded effective June 1, 2014). A March 2013 VA treatment record noted the Veteran's complaints of worsening loosening symptoms, in addition to sharp, achy left knee pain, especially at night. Based on these complaints, a revision left knee replacement surgery was scheduled the following month. In light of the Veteran's complaints during March 2013 VA treatment, and the subsequent replacement surgery that occurred based on those complaints, the Board finds that a 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity for the period beginning March 1, 2013. In this regard, the Veteran is in receipt of the maximum schedular rating for knee replacement. He is not entitled to a 100 percent rating evaluation for his service-connected disability, as it has been over a year since the prosthetic replacement of his left knee joint. Because Codes 5256 to 5263 govern ratings of the knees and provide a maximum 60 percent rating for various knee symptoms, a rating in excess of 60 percent is not assignable under any other Code pertinent to rating a disability of the knee. See generally 38 C.F.R. § 4.71a, Codes 5256-5263 (2017). ORDER A rating in excess of 10 and 20 percent for DJD and residuals of medical meniscectomy, respectively, prior to November 7, 2011, is denied. From January 1, 2013, a 60 rating (but no higher) for status post left knee arthroplasty is granted, subject to the laws that govern the payment of monetary benefits; from that date, a rating in excess of 60 percent is denied. REMAND Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2017). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors may include factors such as "marked interference with employment" and "frequent periods of hospitalization"). As noted above, on physical examination in May 2015, the Veteran had decreased range of motion with altered gait, pain, and joint deformity. He also exhibited pain, weakness, and lack of endurance with repeated use. Additional contributing factors included interference with sitting and standing, as well as decreased muscle strength. The Veteran's representative has alleged that the Veteran's service-connected left knee disability has increased in severity. Accordingly, and in light of the lengthy intervening period, a contemporaneous examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the Board finds that the schedular rating available under the provisions of 38 C.F.R. § 4.71a, Code 5055, may be inadequate because the rating schedule criteria do not address the Veteran's decreased muscle strength, altered gait, and joint deformity. The Board cannot assign an extraschedular rating in the first instance. 38 C.F.R. § 3.321(b). Referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the assignment of an extraschedular rating is warranted for the Veteran's service-connected left knee disability. Accordingly, a remand is necessary. In addition, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently issued a decision, Johnson v. McDonald, in which it rejected VA's interpretation that 38 C.F.R. 3.321(b)(1) only contemplates that referral for extraschedular consideration be made on an individual basis for each service-connected disability to determine if the disability picture rendered the schedular evaluation inadequate, and not on a collective basis. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In Johnson, the Federal Circuit determined that extraschedular consideration required consideration of the "collective impact" of the Veteran's service-connected disabilities in assessing the disability picture and whether it rendered the schedular criteria inadequate such that referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is warranted. In the present case, the Veteran is service-connected for status post left knee arthroplasty, post-prosthetic replacement of the right knee, right knee degenerative arthritis, adjustment disorder secondary to left knee disability, and surgical scar of the left knee. Accordingly, in light of Johnson, the Board has determined that a remand is appropriate so that the RO can determine if referral for an extraschedular evaluation is warranted. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of his failure to report and cooperate for a VA examination, if scheduled, without good cause may include the denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following: 1. The AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed and all findings reported should be sufficient to allow for rating under all applicable criteria, and the examiner should expressly indicate whether there is subluxation or instability (and if so, the degree of such). Range of motion studies should include active and passive motion and weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) If the requested opinion(s) cannot be provided without resort to speculation, the examiner should so state AND explain why an opinion cannot be provided without resort to speculation, to include whether an opinion is beyond what may reasonably be found (based on the evidence of record and current medical knowledge). 2. Thereafter, the issue of whether an extraschedular rating for a left knee disability is warranted must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for initial adjudication. As required by recent case law, the resulting decision MUST include (1) a statement of reasons for the decision and (2) a summary of the evidence considered. Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015); see 38 U.S.C. § 5104. A decision regarding whether extraschedular consideration is warranted should be based on the collective impact of the Veteran's service-connected disabilities on his disability picture and whether it renders the schedular evaluations inadequate pursuant to Johnson. (CONTINUED ON NEXT PAGE) 3. Thereafter, the AOJ should then review the record and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs