Citation Nr: 1754857 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-14 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for a left knee disability. 2. Entitlement to an initial compensable rating for tinea unguium. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to July 1976 and from April 1998 to February 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the issues on appeal. In November 2014, the Veteran testified at a hearing before the Board. The Board remanded the claim in February 2015. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's left knee disability is manifested by limitation of motion on extension, pain on movement, and disturbance to gait and balance as a result of meniscal surgery. 2. The Veteran's tinea unguium covers less than 5 percent of the body or area affected, and has not required the use of systemic medication. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(2012); 38 C.F.R. § 3.102, 3.321, 4.71a, Diagnostic Codes (DCs) 5260, 5261 (2017). 2. Throughout the appeal period, the criteria for a separate 10 percent rating for symptomatic removal of semilunar cartilage have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107(2012); 38 C.F.R. § 3.102, 3.321, 4.71a, DC 5259 (2017). 3. The criteria for a compensable rating for tinea unguium have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 3.102, 4.118, DC 7813 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Left Knee Disability Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. § 4.14, 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the knees are considered major joints. 38 C.F.R. § 4.45. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The criteria for the evaluation of traumatic arthritis direct that the evaluation be conducted under Diagnostic Code 5003, which states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003, 5010 . When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The 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, Diagnostic Code 5003. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. Under Diagnostic Code 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. First, the Board finds that an increased rating pursuant to DC 5260 or 5261 is not warranted. On VA examinations and in the treatment records dated during the appeal period, the Veteran has not been shown to suffer from limitation of flexion or extension that would warrant an increased or separate rating under these codes. However, the Board finds that throughout the appeal period, a separate 10 percent rating is warranted pursuant to DC 5259, contemplating symptomatic removal of semilunar cartilage. The Board finds that in addition to the Veteran's painful limitation of extension, for which she is already in receipt of a 10 percent rating, the Veteran has experienced other symptoms that are not predicated upon limitation of motion, to include balance disturbance and a feeling of instability in the knee joint, that are related to her previous meniscal surgery. In that regard, on May 2015 VA examination, the examiner specifically noted that the Veteran suffered from residual joint pain and effusion related to her meniscal tear. While the examiner did not find evidence of locking of the joint, the Veteran has consistently stated that because of the missing cartilage in her left knee, she has had questionable balance and stability. The May 2015 VA examination findings are consistent with the VA treatment records dated during the appeal period, as well as the 2009 VA examination. An October 2011 orthopedic surgery note reflects that the Veteran had a mildly antalgic gait and used a cane and knee brace for support. While there was no evidence of effusion or laxity at that time, there was patellofemoral crepitus and grinding noted. An October 2010 physical therapy note reflects that the Veteran had had a large portion of her medial meniscus removed in 2005, with resultant left medial knee pain after prolonged standing or walking. She used a knee brace and cane intermittently due to gait and balance problems. Finally, on May 2009 VA examination, the Veteran was shown to have definite signs of joint pain on extremes of flexion, with additional pain shown on patellar grind test. Thus, it is apparent that the Veteran's left knee disability results in limitation of motion as well as other, residual symptoms related to her meniscal surgery, as contemplated by DC 5259. However, because consistently on examination the necessary symptom of locking has not been shown, the Board finds that the criteria for a higher rating under DC 5258 is not warranted. Finally, the Board notes that despite the Veteran's reports of instability of the knee, the medical evidence has consistently shown that she does not suffer from instability or laxity of the knee joint. The examiner specifically noted there was no history of recurrent subluxation or effusion and objective testing was normal. The use of the brace and cane are contemplated in the compensable rating assigned for the symptomatic removal of semilunar cartilage. Thus, a separate or higher rating is not warranted pursuant to DC 5257. The Veteran has not demonstrated knee ankylosis, impairment of the tibia or fibula, or genu recurvatum, thus those codes are not applicable. Tinea Unguium The Veteran is currently in receipt of a noncompensable rating for tinea unguium. Under DC 7813, dermatophytosis, to include tinea pedis of the feet, is to be rated as disfigurement of the head, face or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability. See 38 C.F.R. § 4.118, DC 7813. The Board finds that DC 7813 is the most analogous rating code to the Veteran's disability, and in fact rating code DC 7806 takes into account the Veteran's service-connected symptoms. The rating criteria for DC 7806 are as follows. A noncompensable rating is assigned with less than 5 percent of the entire body affected; or, less than 5 percent of exposed areas affected; and, no more than topical therapy required during the past 12-month period. A rating of 10 percent is assigned with at least 5 percent, but less than 20 percent, of the entire body affected; or, at least 5 percent, but less than 20 percent, of the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A rating of 30 percent is assigned with 20 to 40 percent of the entire body or exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constant, during the past 12-month period. A rating of 60 percent is assigned with more than 40 percent of the entire body or exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806. In this case, the Board finds that a higher rating is not warranted. The Veteran has submitted evidence of use of a topical cream for her skin disability, but she has not been shown to have used systemic therapy or topical cream that has a systemic impact. Namely, the topical cream used was an antifungal meant to target specific isolated areas of the body, the toenails. On May 2015 VA examination, her tinea unguium was found to affect less than 5 percent of her body or part. These findings are consistent with those on July 2009 VA examination, and upon review of the treatment records dated during the appeal period. Finally, the Veteran's disability affecting her toenails and starting to affect her fingernails, by way of thickened, discolored nails, has not been shown to impact her activities of daily living or occupational duties. ORDER A rating in excess of 10 percent for limitation of extension of the left knee is denied. A separate 10 percent rating for symptomatic removal of semilunar cartilage of the left knee is granted, subject to the laws and regulations governing the award of monetary benefits. A compensable rating for tinea unguium is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs