Citation Nr: 1800790 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 10-47 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation higher than 10 percent for degenerative joint disease of the right knee. 2. Entitlement to an evaluation higher than 10 percent for degenerative joint disease of the left knee. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, including on an extraschedular basis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from June 1972 to June 1974 and from November 1974 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2014, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in Washington, DC. A transcript of the proceeding is of record. This case was last before the Board in February 2017, where it remanded the matter for further development. The RO continued the denial of the claim, as reflected in the August 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further review. The Board notes that there was substantial compliance with its February 2017 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). However, as will be explained in the REMAND portion of the decision below, the issue of entitlement to a TDIU on an extra-schedular basis requires further development before the Board can adjudicate the Veteran's claim, so the Board is returning this claim to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. For the entire period on appeal, the medical evidence of record indicates that there is painful motion but does not reflect that the Veteran's right knee degenerative joint disease results in compensable limitation of flexion or extension, recurrent subluxation or lateral instability, dislocation of the semilunar cartilage, or any disability due to an impairment of the tibia and fibula. 2. For the entire period on appeal, the medical evidence of record indicates that there is painful motion but does not reflect that the Veteran's left knee degenerative joint disease results in compensable limitation of flexion or extension, recurrent subluxation or lateral instability, dislocation of the semilunar cartilage, or any disability due to an impairment of the tibia and fibula. 3. The Veteran has not met the schedular criteria for a TDIU, because he does not have a single disability rated at 60 percent or more and, the combined rating of his service-connected disabilities is not 70 percent or more. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 10 percent for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 - 5262 (2017). 2. The criteria for an evaluation higher than 10 percent for left knee DJD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257 - 5262 (2017). 3. The criteria for a schedular TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased rating claims, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Board notes that in a June 2009 letter, the Veteran was informed of what evidence was required to substantiate his claim, and of his and VA's respective responsibilities in obtaining evidence. Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in the September 2010 Statement of the Case (SOC), as well in additional SSOCs. He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify is satisfied. Regarding the duty to assist, the Board notes that the claims file contains relevant post-service medical records and the Veteran's own written contentions. Neither the Veteran nor the Veteran's representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained. Furthermore, the Veteran was afforded VA examinations and opinions were provided in support of his claim. Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Legal Criteria for Increased Rating When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of a disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. If the evidence for and against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Knee disabilities are evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. The appropriate rating criteria for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. A veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). See VAOPGCPREC 9-2004. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and, noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. Id. Under Diagnostic Code 5256, evaluations are assigned when ankylosis is present. 38 C.F.R. § 4.71a. Diagnostic Codes 5258 and 5259 provide for disability ratings when the semilunar cartilage is dislocated and/or removed and related symptoms are present. Id. Symptoms contemplated by Diagnostic Code 5258 include locking, pain, and effusion into the joint. Finally, a 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Id. 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 for "equitable and just decisions." 38 C.F.R. § 4.6. The Veteran's service-connected left knee DJD is currently assigned a 10 percent evaluation, from December 1, 1992, under Diagnostic Code 5260-5010. Similarly, his right knee DJD is assigned a 10 percent evaluation from October 14, 2008. The Board notes that the evaluation of the same disability under various diagnostic codes is to be avoided, however the assignment of separate evaluations for separate and distinct symptomatology is permitted where none of the symptomatology that justifies an evaluation under one diagnostic code is duplicative of, or overlapping with, the symptomatology that justifies an evaluation under another, separate diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). III. Increased Evaluation for Bilateral Knee DJD The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Review of the Veteran's VA treatment records reveals noncompensable limitation of knee flexion in both knees. See, e.g., VA Treatment Records dated in Oct. 4, 2010 (documenting flexion to "about 100 degrees"); Apr. 24, 2012 (documenting flexion to "about 100 degrees"); June 26, 2013 (documenting flexion to "about 100 degrees"); May 2, 2014 (documenting flexion to "about 110 degrees"); and, August 18, 2015 (showing flexion to "about 110 degrees"). The Veteran was afforded a VA examination in February 2009. The Veteran reported having pain and stiffness, but denied any giving way, instability, weakness, or any episodes of dislocation or subluxation in his knees. He also reported flare-ups of pain when walking for more than a quarter mile, but less than one mile, as well as when standing for more than one hour, but less than three hours. The results from the physical examination revealed flexion to 130 degrees out of 140 degrees, and extension was full at 0 degrees in both knees. No instability was found on examination. The examination report also indicates that a change was not found in range of motion after repetitive movement of the knee due to pain or weakness. The Veteran was afforded a VA examination in April 2010. The Veteran reported having pain and stiffness, but denied any giving way, instability, weakness, or any episodes of dislocation or subluxation in his knees. He also reported flare-ups of pain when walking for more than a quarter mile, but less than one mile, as well as when standing for more than 15 to 30 minutes. The results from the physical examination revealed flexion to 125 degrees out of 140 degrees in the left knee, flexion to 120 degrees out of 140 degrees in the right knee, and extension was full at 0 degrees in both knees. No instability was found on examination. The examination report also indicates that a change was not found in range of motion after repetitive movement of the knee due to pain or weakness. Most recently, the Veteran was afforded another VA compensation examination in August 2017. The Veteran reported constant, sharp, nonradiating pain in both knees. He also reported aggravated knee pain when sitting longer than 1 hour and squatting or walking longer than 15 minutes. Results from the physical evaluation revealed flexion to 115 degrees out of 140 degrees in the left knee, flexion to 125 degrees out of 140 degrees in the right knee, and extension was full at 0 degrees in both knees. Anterior, posterior, medial, and lateral instability were all noted as normal in both knees on examination. No ankylosis was documented, and the examiner indicated that there was not a history of recurrent subluxation or effusion. The examination report also indicates that a change was not found in range of motion after repetitive movement of the knee due to pain or weakness. At the outset, the Board finds that the VA compensation examinations described above, collectively, were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claims for increase. See Barr v. Nicholson, 21 Vet. App. 303 (2007). These examiners considered the relevant history of the Veteran's bilateral knee DJD, including the lay evidence of record, performed a physical examination, and provided a rationale to support the opinions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board concludes that the evidence of record is not sufficient to meet the criteria for an evaluation higher than the 10 percent rating currently assigned for either knee at any point during the period on appeal. In this case, the Veteran's bilateral knee DJD has primarily been manifested by symptoms of limitation of flexion, which is evaluated using the diagnostic criteria found in Diagnostic Code 5260. Throughout the period on appeal, the Veteran's range of motion in both knees has, at worst, been documented as flexion limited to 100 degrees out of 140 degrees, which more closely approximates a noncompensable rating under Diagnostic Code 5260. However, despite this symptomatology, the Veteran has been assigned separate 10 percent evaluations for his service-connected bilateral knee DJD based on painful motion of each knee. See 38 C.F.R. § 4.59. The Board has considered whether other potentially applicable diagnostic codes allow for a separate compensable and/or increased rating for the Veteran's bilateral knee symptoms. However, the Board concludes that the Veteran's disability does not warrant a change in Diagnostic Codes as Diagnostic Code 5260 specifically addresses the limitation in flexion that the Veteran has been experiencing. First, Diagnostic Code 5256 is inappropriate, because the evidence of record does not reflect any ankylosis. Similarly, Diagnostic Code 5261 is also inappropriate, because there is no evidence suggesting a limitation of extension in either knee. Next, Diagnostic Code 5257 is inappropriate, because the VA examinations and medical evidence of record have consistently revealed no instability or subluxation. Lastly, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see 38 C.F.R. §§ 4.40, 4.45. However, as noted above, the Veteran is already in receipt of separate 10 percent evaluations for each knee pursuant to the provisions of 38 C.F.R. § 4.59. In reaching this determination, the Board considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against an evaluation greater than that assigned. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Schedular TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met. Id. But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). As it now stands, the Veteran is in receipt of service connection for a lumbar spine disability with an assigned 20 percent evaluation, effective April 16, 2007, and bilateral knee DJD, each separately assigned a 10 percent evaluation, effective December 1, 1992 and October 14, 2008, respectively. As these are his only service-connected disabilities, he has not met the schedular criteria for a TDIU at any point during the period on appeal, because he does not have a single disability rated at 60 percent or more and, the combined disability rating of his service-connected disabilities was not 70 percent or more. Accordingly, as a matter of law, the Veteran does not meet the schedular criteria for a TDIU and the claim must be denied. See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Notwithstanding this determination, the Board will address the issue of entitlement to a TDIU on an extraschedular basis in the Remand portion of this decision below. ORDER Entitlement to an evaluation higher than 10 percent for right knee DJD is denied. Entitlement to an evaluation higher than 10 percent for left knee DJD is denied. Entitlement to a schedular TDIU is denied. REMAND The evidence of record reflects that the Veteran might have been unemployable due to his service-connected lumbar spine and bilateral knee disabilities at some point during the period on appeal. Specifically, during the April 2010 VA examination, while the examiner noted that the Veteran retired as a truck driver in 1992 and was currently a full-time student, the examiner indicated that the Veteran's bilateral knee condition caused problems with lifting and carrying. Additionally, the examination report contains a note stating that the Veteran is unable to drive while on his medications. Similarly, the August 2017 VA examiner indicated that the Veteran's complaints of "pain all over" was ambiguous, but noted that typically service-connected bilateral knee and lumbar spine disabilities would cause pain with weight-bearing activities and flexion of the knees. Also, the examiner stated that a job that will allow frequent short breaks or changes of position would be ideal for the Veteran. At no point during the period on appeal has the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), which means that a TDIU, if applicable, would need to be awarded on an extraschedular basis. However, as noted above, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria under 38 C.F.R. § 4.16(a), to the Director of Compensation Services for extraschedular consideration. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, as the Veteran has not met the schedular criteria for a TDIU, the Board finds that a remand is warranted to refer the TDIU claim to the Director for extraschedular consideration in the first instance. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information and average hours worked, etc., from October 1, 2009 to the present. 2. After completing the above and any other development deemed necessary by the AOJ, submit the claim to the Director of the Compensation Service for consideration of a TDIU on an extra-schedular basis. If this claim remains denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs