Citation Nr: 1800448 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-30 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis from May 17, 2007 until November 15, 2010. 2. Entitlement to an evaluation in excess of 30 percent for right total knee replacement status post from January 1, 2012 until August 7, 2017. 3. Entitlement to an evaluation in excess of 60 percent for right total knee replacement status post from August 7, 2017. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to February 2004. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board remanded the claim in August 2016 and March 2017 for further development. The Veteran testified before the undersigned Veteran Law Judge at a June 2016 hearing before the Board. A copy of the hearing transcript has been associated with the claims folder. The United States Court of Appeals for Veterans Claims (Court) has outlined in Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." See September 2016 VA examination. Hence, the Board assumes jurisdiction over the TDIU claim. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The probative evidence shows the Veteran's right knee symptomatology prior to November 15, 2010 to include frequent locking, pain and effusion into the joint; but the record is negative for symptoms of ankylosis, flexion limited to less than 90 degrees, extension limited to more than 0 degrees, subluxation, and instability. 2. The probative evidence shows the Veteran's right knee disability symptoms to be chronic residuals of a total right knee arthroscopy, beginning in January 1, 2012. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a right knee disability from May 17, 2007 until November 15, 2010 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5256-5263 (2017). 2. The criteria for a 60 percent evaluation for a right knee disability from January 1, 2012 until August 7, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055, 5256-5263 (2017). 3. The criteria for a disability rating in excess of 60 percent for a right knee disability from August 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055, 5256-5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). II. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by 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. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic Code 5010 concerns arthritis due to trauma; it requires establishment by X-ray evidence. Diagnostic Code 5010 is to be rated the same as Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative or traumatic 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under Diagnostic Code 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities are considered groups of minor joints. 38 C.F.R. § 4.45. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, pertaining to limitation of leg flexion, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Symptomatic removal of the semilunar cartilage is assigned a maximum 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint are assigned a maximum 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (July 1, 1997; revised July 24, 1997). The General Counsel subsequently clarified in VAOPGCPREC 9-98 (August 14, 1998) that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. VA's General Counsel further explained that, if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. This is because, read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). VA's General Counsel has additionally held that separate ratings may also be assigned for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59, 990 (2004). Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same knee, the limitations must be rated separately to adequately compensate him for functional loss associated with injury to his leg and knee. Id. III. Analysis A. May 17, 2007 through November 15, 2010 The Board has reviewed the Veteran's medical records and finds the Veteran's symptomatology most closely approximates a 20 percent disability rating by analogy under Diagnostic Code 5258. The Veteran was afforded a VA orthopedic examination in June 2007. The Veteran's medical records during this time frame were negative for any evidence to support ankylosis, subluxation, lateral instability, impairment of the tibia and fibula, compensable limitation of flexion, compensable limitation of extension, and genu recuvatum of the right knee. The June 2007 VA examiner tested the Veteran's flexion, extension, and lateral instability. The Board notes the examiner did report moderate effusion and "constant swelling, popping, and locking" of the right knee with a meniscus tear. Based on the Veteran's symptomatology noted by the examiner, the medical evidence of record supports a rating by analogy of 20 percent under Diagnostic Code 5258. However, the evidence does not show the limitation of flexion, limitation of extension, ankylosis, recurrent subluxation, or lateral instability necessary to support an evaluation in excess of 20 percent, or any separate evaluations. B. January 1, 2012 through August 7, 2017 The Board has reviewed the Veteran's medical records and finds that the Veteran's symptomatology most closely approximates a 60 percent disability rating under Diagnostic Code 5055. The Veteran underwent a right total knee arthroscopy (TKA) in November 2010. In December 2016, the Veteran had TKA patellar revision surgery, resulting in a temporary 100 percent evaluation assigned under Diagnostic Code 5055 from November 15, 2010 until January 1, 2012. The Veteran was afforded VA orthopedic examinations in September 2016, May 2017, and August 2017. The Veteran's medical records are negative for any evidence to support ankylosis, subluxation, lateral instability, impairment of the tibia and fibula, compensable limitation of flexion, compensable limitation of extension, and genu recuvatum of the right knee. The Veteran is currently rated at 30 percent disabling under Diagnostic Code 5055 for intermediate degrees of residual weakness, pain or limitation of motion. However, the evidence shows the current evaluation does not match the Veteran's symptomatology throughout the period on appeal. The Board finds that the Veteran is entitled to a 60 percent rating for the right knee disability, status post TKA, beginning January 1, 2012. Following the end of the schedular temporary total rating due to right TKA, the Veteran has consistently reported symptoms such as severe painful motion and weakness in the right knee, including cortisone injections which did not alleviate the Veteran's right knee pain. The Veteran's continued right knee symptoms prompted diagnostic studies in March 2014 which revealed a loosening of the tibial component of the prosthesis and indicated that a revision TKA may be necessary, over two years prior to the Veteran undergoing the TKA revision surgery. Additionally, the Board notes that the Veteran's reports of his post-TKA symptoms have been consistent since recovery from TKA revision surgery in December 2016. The Board does acknowledge the September 2016 examiner marked "intermediate degrees of residual weakness, pain or limitation of motion"; however, the evidence of record supports the Boards finding of chronic residuals. The September 2016 examiner listed constant pain; inability to exercise; pain with walking, sitting, using stairs, lifting, standing; and interference with sleep as functional impacts of his condition. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that he is entitled to an increased rating of 60 percent for his right knee disability from January 1, 2012. C. Subsequent to August 7, 2017 The Veteran's right knee disability is currently rated with a 60 percent disability evaluation as of August 7, 2017. The Board notes that the 60 percent rating is the highest schedular rating allowable for the right knee disability, status post TKA. 38 C.F.R. § 4.71a, Diagnostic Code 5055. In granting this higher rating, the Board has considered the amputation rule set forth at 38 C.F.R. § 4.68. The highest rating for amputation in the middle or lower third of the thigh is 60 percent. The combined ratings for disabilities of an extremity shall not exceed the rating for the amputation at the elective level were amputation to be performed. 38 C.F.R. § 4.68. Thus, the highest evaluation that may be assigned under the amputation rule for the knee is 60 percent. The Board's findings above are based on the rating schedule. Generally, it must be remembered that the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. In this regard, the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. The disability evaluations are based upon this functional impairment-the lack of usefulness, of these parts or systems, especially in self-support. Moreover, the rating schedule is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The extraschedular determination must follow a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). 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, the level of severity and symptomatology of a Veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a Veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111. In this case, referral for extraschedular consideration is not warranted. The Veteran's service-connected right knee disability is manifested by signs and symptoms such as pain and weakness, which impairs his ability to stand for long periods, walk, or use stairs. These signs and symptoms, and their resulting functional impairments, are expressly contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the knee provide disability ratings on the basis of painful motion and weakness. See 38 C.F.R. § 4.71a, Diagnostic Code 5055. In fact, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Because the rating schedule was purposely designed to compensate for such functional effects of his disabilities in all spheres of his daily life, including at work and at home, and given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. See 38 C.F.R. §§ 4.1, 4.10, 4.15. In addition, the Board notes the Veteran does not contend that his right knee disability presented an exceptional or unusual disability picture to warrant an extraschedular rating. In a November 2017 letter the Veteran sent in response to the October 2017 supplemental statement of the case, the Veteran indicated he was not disputing the 60 percent rating effectuated on August 7, 2017, but rather believes the 60 percent rating should be effective beginning in January 2012 - and this partial increase has in fact been granted in this decision. In short, there is nothing exceptional or unusual about the Veteran's right knee disability because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an evaluation of 20 percent for right knee disability from May 17, 2007 until November 15, 2010 is granted. Entitlement to an evaluation of 60 percent for right total knee replacement status post from January 1, 2012 until August 7, 2017 is granted. Entitlement to an evaluation of 60 percent for right total knee replacement status post from August 7, 2017 is denied. REMAND The Veteran's TDIU claim, now part of this appeal, has not been adjudicated by the RO to date, to include proper 38 C.F.R. § 3.159(b) notification of the evidence needed to support this claim. This action must be completed prior to a Board adjudication of the claim. Accordingly, this case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notification letter addressing his TDIU claim. Complete any follow-up development necessitated by his response. 2. After completion of the foregoing, and any other development deemed necessary, the AOJ must adjudicate the TDIU claim. If the benefit is not granted, the RO must issue a supplemental statement of the case to the Veteran and his representative. The Veteran and his representative must be afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and arguments on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs