Citation Nr: 1756095 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-33 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to increased evaluation for a right knee disability, to include post total right knee replacement with revision, osteoarthritis, and history of instability, in excess of 20 percent prior to January 26, 2012, in excess 60 percent from March 1, 2013 to June 10, 2013, and in excess of 30 percent from August 1, 2014. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD K. Anderson, Counsel INTRODUCTION The Veteran had active duty service from December 1983 to February 1992. This matter comes to the Board of Veterans' Appeals (Board) from an October 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This claim was previously before the Board in April 2017, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include obtaining a medical examination. The requested development has been completed by the RO and with no further action necessary to comply with the Board's remand directives; the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. For the period prior to January 26, 2012, the Veteran's right knee disability was manifested by moderate instability of the knee and a meniscus condition. 2. For the period from March 1, 2013 to June 10, 2013, the Veteran's right knee disability was manifested by status post right total knee replacement with chronic residuals consisting of severe painful motion or weakness. 3. For the period from August 1, 2014 to the present, the Veteran's right knee disability was manifested by moderate instability of the knee and a meniscus condition with intermediate degrees of residual weakness and pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent, for the period prior to January 26, 2012, for right knee instability, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2017). 2. The criteria for a separate 20 percent rating, for the period prior to January 26, 2012, for right knee torn semilunar cartilage productive of frequent locking and effusion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258 (2017). 3. The criteria for a rating in excess of 60 percent, from March 1, 2013 to June 10, 201, for status post right total knee replacement with chronic residuals consisting of severe painful motion or weakness have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055 (2017). 4. The criteria for a rating in excess of 30 percent, from August 1, 2014 to the present, for status post right total knee replacement with intermediate degrees of residual weakness and pain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055 (2017). 5. The criteria for a separate 20 percent rating, from August 1, 2014 to the present, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts entitlement to higher ratings for various staged ratings for his service connected right knee disability. During the first period on appeal the Veteran was service connected for a right knee disability and rated at 20 percent disabling for the period prior to January 26, 2012. For the second period on appeal the Veteran was rated at 60 percent disabling from March 1, 2013 to June 10, 2013. For the third period on appeal the Veteran has been rated at 30 percent disabling since August 1, 2014 to the present. During intermittent periods the Veteran was assigned 100 percent ratings based on surgery under 38 C.F.R. § 4.30. The Board will not discuss the periods where the Veteran was assigned a 100 percent rating. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by applying the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, staged ratings may be assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. See 38 C.F.R. § 4.7; see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Prior to January 26, 2012 For the period prior to January 26, 2012, the Veteran's right knee was assigned a 20 percent disability rating under 38 C.F.R. 4.71a, Diagnostic Code 5257. A treatment note from October 2001 states that the Veteran had degenerative joint disease of the right knee. There was no edema or effusion to the knee, range of motion was 0-120 degrees. The knee was stable to varus/valgus stress and McMurrays neurovascularly intact. At a VA examination in March 2002, the Veteran complained that his right knee was giving way. He had a range of motion of 0-175 on his right knee. He showed significant instability of 2+ on the right knee and was sensitive to parapatellar regions of the right knee. In November 2010 the Veteran's x-rays of his right knee showed mild to moderate tricompartmental degenerative changes noted. He was diagnosed with osteoarthritis of the right knee with subjective factors of weakness, stiffness, swelling, pain, giving way, lack of endurance, and locking. The objective factors were tenderness, crepitus, and pain with range of motion. The examiner noted that the right knee stability tests were within normal limits and there was no subluxation. His range of motion testing was from 0-140 with pain at 110 and extension to 0 with beginning at -10. The Board notes that the Veteran has expressed disagreement with the results of this examination. The Board also finds the result of this examination to be inconsistent with the results from March 2002 and May 2017. As such, the Board has assigned less probative value to the results of this examination in making its findings. The Board finds there is insufficient evidence to grant a higher rating under 38 C.F.R. 4.71a, Diagnostic Code 5257 for instability, because the Veteran's condition has not been shown to be severe. Based upon the evidence from the March 2002 examination, the Board finds that that the Veteran is entitled to a separate rating of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5258 for recurrent effusion due to a meniscus (semilunar cartilage) condition with subjective complaints of locking. The Board does not find that additional ratings for the knee are warranted for this period because the evidence does not show that Veteran's range of motion was limited to a compensable, or that he had impairment of the tibia and fibula. March 2013 to June 2013: For the period from March 2013 to June 2013 the Veteran's right knee disability was rated at 60 percent disabling under 38 C.F.R. 4.71a, Diagnostic Code 5055. This diagnostic code rates knee replacements. The Veteran underwent a total knee replacement in January 2012. The Veteran received a 100 percent rating for an entire year after his surgery as is noted in the diagnostic code. After the one year 100 percent rating, the Veteran's right knee disability was rated at 60 percent for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A 60 percent evaluation is the highest evaluation under this diagnostic code that the Veteran can receive, after the one year period post-surgery has expired. A treatment note from March 2012 from an orthopedic specialist states that the Veteran's knee prosthetic bothers him when he walks and he has some intermittent pain in knee due to sudden catching along the medial side. The impression was a mechanical intermittent impingement on the right total knee replacement. On June 11, 2013, the Veteran underwent a second total knee replacement surgery revision and received a 100 percent evaluation under 38 C.F.R. 4.71a, Diagnostic Code 5055 from June 2013 to July 2014. August 2014 to the Present: For the period since August 2014, the Veteran's right knee disability has been rated as 30 percent disabling under 38 C.F.R. 4.71a, Diagnostic Code 5055. The Veteran underwent a VA examination of his right knee in May 2017. At this time the Veteran reported that he occasionally has flare-ups due to the weather. It was also noted that he has some functional loss due to the limitations of the prosthesis. His range of motion was 10 to 120 degrees. Pain on flexion was noted, but it did not result in additional functional loss. There was no pain on weight bearing, but crepitus was noted. His joint stability testing show recurrent subluxation and lateral instability, as well as evidence of recurrent effusion. It was also noted by the examiner that the Veteran has a meniscus (semilunar cartilage) condition. Lastly, the examiner noted that in regards to Correia range of motion testing, all listed testing was conducted to the extent practicable, to include passive, weight, bearing and non-weight bearing range of motions. Further, the description of pain with non-weight bearing and pain with passive range of motion and functional loss reported by the Veteran was noted in the examination report. For the period since August 1, 2014, the Board finds that the Veteran is not entitled to a higher disability rating under 38 C.F.R. 4.71a, Diagnostic Code 5055 because the evidence does not show chronic residuals consisting of severe painful motion or weakness in the affected extremity due to his total knee replacement. The examiner in 2017 specifically noted that the Veteran stated he did have any symptoms of his right knee at the time of the examination. However, the Board does find that the Veteran is entitled to a separate rating of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for instability of the knee, to include recurrent subluxation or lateral instability. Since the Veteran received a total knee replacement, the Board is not able to grant a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5258 for recurrent effusion due to a meniscus (semilunar cartilage) condition during this period. The Board does not find that additional ratings for the knee are warranted during this period because the evidence does not show that Veteran's range of motion is limited to a compensable level, or that he has impairment of the tibia and fibula. Additional Considerations VA's schedule of disability ratings is based on average impairment in earning capacity in civil occupations from specific injuries or combinations of injuries. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 3.321 (a) (2016). Where the ratings are inadequate to address the Veteran's symptomatology, he may be entitled to an extraschedular rating. 38 C.F.R. § 3.321 (b)(1) (2015). Referral for extraschedular consideration "may be based on the collective impact of [a] veteran's disabilities." Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). In Thun v. Peake, the Court provided a framework for determining whether an extraschedular rating is warranted. 22 Vet. App. 111, 115 (2008). In the first step, the Board must determine whether the evidence "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If so, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" or "frequent periods of hospitalization." Id. at 116. If these two prongs are met, then the Board is to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration. Id. In this case, the Veteran does not meet the first prong of the Thun analysis, as there is no suggestion that the ratings are inadequate. First, the Veteran has not claimed that the available schedular ratings are inadequate. Second, the evidence of record does not itself suggest that extraschedular consideration is warranted. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) (noting that the issue of whether referral for extraschedular consideration is warranted must be argued by the claimant or reasonably raised by the record). In this regard, VA has now assigned three separate ratings to address the right knee disability, which, as discussed above, fully capture the disabling effects of his right knee disability; one for residuals of a total knee replacement; one for instability, and one for locking and effusion related to a torn meniscus. The Veteran's right knee symptomatology is fully captured by these ratings. Thun, 22 Vet. App. at 115. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321 (b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321 (b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when there is "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities create such an exceptional circumstance to render the schedular rating criteria inadequate. There is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. For these reasons, the Board finds that the schedular rating criteria are adequate, and no extraschedular referral is warranted in this case. 38 C.F.R. § 3.321 (b)(1). Entitlement to a total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board has considered whether remand or referral for consideration of a TDIU during any period on appeal is warranted. In this regard, the record reflects that the Veteran has been employed by the City of Richmond Police Department as a program manager in the Records and Technology Division. The Veteran has not filed a formal TDIU application and the evidence of record does not suggest that the Veteran's right knee disability keeps him from maintaining substantial gainful employment. Specifically, the Board notes that on VA examination in May 2017, a VA examiner opined that the Veteran was likely precluded only from employment which requires him to squat or crawl, but other more sedentary employment was not precluded. Therefore, remand for consideration for TDIU under Rice is not warranted in this case. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In any event, VA provided the Veteran notice letters that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his underlying claim, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2016). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2016). The Veteran was provided VA examinations in March 2002, November 2010 and May 2017, which are adequate for the purposes of determining the severity of the Veteran's disability as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to an increased rating greater than 20 percent for right knee instability, for the period prior to January 26, 2012, is denied. Entitlement to a separate rating of 20 percent for right knee torn semilunar cartilage resulting in frequent locking and effusion, for the period prior to January 26, 2012, is granted. Entitlement to an increased rating greater than 60 percent for status post total knee replacement, for the period from March 1, 2013 to June 10, 2013, is denied. Entitlement to an increased evaluation greater than 30 percent for status post total knee replacement, for the period from August 1, 2014 is denied. Entitlement to a separate 20 percent rating for right knee instability for the period from August 1, 2014 is granted. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs