Citation Nr: 1800943 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-11 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for a right knee disability. 2. Entitlement to an increased rating in excess of 20 percent for a back disability. REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from March 1995 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the claims was subsequently transferred to the RO in Houston, Texas. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). When this case was most recently before the Board in May 2017, it was remanded for further development. It is now before the Board for further appellate action. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran has not raised the issue of a TDIU and therefore, it is not before the Board at this time. The issue of an increased rating for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's right knee disability is manifested, at worst, by 0 degrees of extension and 90 degrees of flexion, with pain on movement but no subluxation. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for retropatellar pain syndrome of the right knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5258, 5259, 5260, 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify VA's duty to notify was satisfied by a letter dated in September 2008. 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). Examinations have been conducted. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. Relevant 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 the 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 past 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. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Analysis The Veteran's right knee retropatellar pain syndrome is evaluated as 10 percent disabling pursuant to diagnostic codes 5014-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Traumatic arthritis will be rated as degenerative arthritis under Diagnostic Code 5010. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis of the knee warrants a 40 percent evaluation if it is in flexion between 10 and 20 degrees. If ankylosis is in flexion between 20 and 45 degrees, a 50 percent evaluation is warranted. If ankylosis is extremely unfavorable at an angle of 45 degrees or more, a 60 percent evaluation is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Recurrent subluxation or lateral instability of the knee is evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that Diagnostic Code, a 10 percent evaluation is warranted where impairment of the knee involves slight subluxation or lateral instability. A 20 percent evaluation is warranted where the impairment is moderate, and a 30 percent evaluation will be assigned where the impairment is severe. A 20 percent evaluation may be assigned where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent evaluation is assigned for removal of semilunar cartilage, symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 A noncompensable evaluation is appropriate where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion of the leg is limited to 45 degrees and a 20 percent rating is warranted where flexion is limited to 30 degrees. Where flexion is limited to 15 degrees, a 30 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A noncompensable evaluation is warranted where extension of the leg is limited to 5 degrees; a 10 percent rating is appropriate where extension of the leg is limited to 10 degrees; and a 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is for assignment for extension limited to 20 degrees. A 40 percent evaluation is warranted for extension limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II (2017). The VA Office of General Counsel (GC) has issued opinions pertinent to claims of entitlement to higher evaluations for knee disabilities. Two of those GC opinions reflect that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under Diagnostic Codes 5003 and 5257 provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOGCPREC 9-98 (August 14, 1998). Another VA GC Precedent Opinion, VAOPGCPREC 9-2004 (September 17, 2004), held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under diagnostic codes 5260 and 5261 to adequately compensate for functional loss associated with injury to the leg. In June 2009, the Veteran was afforded a VA examination for his knees. Upon examination, there was crepitus, grinding and tenderness on the right. There was no instability or patellar or meniscus abnormality. There was objective evidence of pain on movement on the right side. Flexion was to 100 degrees and extension was to 0 degrees. The examiner did not state when pain began. Repetitive motion was not tested. During the October 2014 VA examination, the examiner diagnosed the Veteran with osteoarthritis of the knee. The Veteran reported pain, stiffness, poor weight bearing and difficulty with job function. Upon examination, flexion was to 115 degrees, and extension was to 0 degrees. He reported painful motion began at 0 degrees. The examiner noted pain on movement. The examiner also noted that the Veteran had tenderness or pain to palpation for joint line or soft tissues of either knee. Stability testing was completed, and all tests were normal. The Board found this examination to be inadequate as there was no assessment of additional limitation of motion due to factors such as flare-up and repeated use. In the July 2016 VA examination, the Veteran was diagnosed with chondromalacia of the right knee and joint osteoarthritis. He reported not being able to stand for more than 15 minutes at a time due to pain. Flexion was to 125 degrees, and extension to zero degrees. There was pain on motion but the degree at which pain began was not tested. There was no evidence of pain on weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint. Specifically there was moderately tender superior patellar and lateral joint lines. Repetitive use testing was tested but no loss of range of motion was found. There was no history of recurrent subluxation, instability or effusion. Stability testing was performed and there was no joint instability. The examiner noted that the Veteran said he cannot run greater than 1 mile or walk greater than 1 hour due to knee pain and edema. He was also unable to descent stairs without marked pain so he avoids them. He cannot stand for greater than 15 minutes due to pain and sitting is painful if his foot is off the ground. The examiner noted that he would be impaired in jobs with essential functions that exceeded the above noted limitations. In a June 2017 examination, the examiner explained that the original diagnosis of retro-patellar pain syndrome/patellofemoral pain syndrome is the correct diagnosis; diagnosis of chondromalacia was made in error. The examiner provided a detailed rationale about why this was the case. The Veteran reported that he cannot run more than an eighth of a mile and cannot walk long distances or stand for a long time. Upon examination, flexion was to 90 degrees. Ambulation was assessed which was unremarkable for signs of fatigability, diminished endurance and incoordination and no symptoms were reported by the Veteran. There was no evidence of pain on passive range of motion testing. There was no evidence of pain when the joint was used in weight bearing or non-weight bearing. There was no opposing joint undamaged. There was no pain noted on exam. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of crepitus. The left knee was also examined. The examiner further noted that it would be mere speculation to give an opinion about additional loss of degree of range of motion over a period of time. The examiner noted that he did not have significant loss of range of motion during repetition while performing the exam. The examiner noted that the Veteran's right knee caused disturbance of locomotion and interference with standing. There was no ankylosis. Stability testing was not performed due to increased pain in lower back. Despite this, there was no history of subluxation, instability or effusion. The Veteran noted that when he is with a customer at work, he cannot stand for long periods of time or his knee begins to hurt. The current evaluation of the Veteran's right knee osteoarthritis contemplates the presence of osteomalacia and painful motion on flexion. In order to warrant a higher evaluation, the Veteran's right knee osteoarthritis must approximate the functional equivalent of limitation of flexion to 30 degrees. Such is not shown by the evidence of record. Rather, the evidence pertaining to the appeal period reflects that flexion was limited, at worst, to 90 degrees. Extension has at worst been limited to 0 degrees which does not meet the criteria for a separate compensable rating pursuant to Diagnostic Code 5261. The Board has also considered whether a higher evaluation is warranted for the Veteran's right knee pursuant to the criteria addressing damage to the semilunar cartilage or symptomatic removal thereof. As noted, the criteria provides a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of locking pain and effusion into the joint, and a 10 percent evaluation for symptomatic removal of the semilunar cartilage. The claims file does not show locking pain or effusion during the appeal period. Furthermore, the 2017 VA examiner explained that the Veteran did not have a diagnosis of chondromalacia which is a diagnosis that involved the cartilage of the knee. The Veteran has pain on movement of his right knee throughout the appeal period, but this pain is already contemplated in the currently assigned 10 percent evaluation which appears to be assigned under Diagnostic Code 5003 for limitation of motion with objective painful motion. Therefore, a separate evaluation under Codes 5258 or 5259 is not warranted. The Board also considered a separate evaluation for recurrent subluxation of the knees, but the examinations conducted during the appeal period do not show subluxation during the period on appeal. See 38 C.F.R. § 4.71a, DC 5257. The Veteran is currently assigned a 10 percent evaluation for noncompensable limitation of motion with objective painful motion which appears to be considered under DC 5003. The Board acknowledges that the most recent June 2017 examiner noted no pain on examination. Despite this, the June 2009, October 2014 and July 2016 examination reports all note pain on movement of the right knee. Resolving all doubt in the Veteran's favor, the Board finds that a 10 percent for the right knee should continue. The Board accepts that the Veteran has experienced functional impairment, pain, and pain on motion. See DeLuca. The Board also finds the Veteran's own reports of symptomatology and reports of flare-ups to be credible and has considered the functional impact of the Veteran's pain. Nevertheless, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for higher evaluations under diagnostic codes pertinent to the knee when considering such factors as pain, weakness, fatigue, lack of endurance and incoordination. The Veteran's additional limitation on repetitive use has already been considered. When asked if the Veteran's pain, fatigability or incoordination significantly limit functional ability with flare-ups, the July 2016 examiner opined that he was unable to say without speculation because he was not examined during a flare-up. The June 2017 examiner assessed ambulation and found it unremarkable for signs of fatigability, diminished endurance and incoordination; and no symptoms were reported by the Veteran during the examination. The June 2017 examiner further noted that it would be speculation to give an opinion on any additional loss of degrees of range of motion over a period of time due to weakness, fatigability or incoordination, but that the Veteran did not have significant loss of range of motion during repetition during examination. In essence, the evidence as a whole demonstrates that the evaluations currently assigned are appropriate. In summary, an evaluation higher than 10 percent for the right knee disability is not warranted. ORDER For the period on appeal, an evaluation in excess of 10 percent for a right knee disability is denied. REMAND Although the Veteran received a new VA examination for his back in June 2017, range of motion testing for passive motion was not completed. It appears that only active motion range of motion testing was conducted. Also, range of motion testing was not completed in both weight-bearing and non-weight bearing. For these reasons, the examination report does not comply with the May 2017 Remand directives or Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 (2017). Where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thus, on remand, the examiner must adequately respond to the Board's May 2017 remand directives. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to ascertain the current nature and severity of his service-connected back disability. The contents of the entire electronic claims file (in VBMS and Virtual VA), to include a complete copy of the REMAND, must be made available to the designated individual, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If pain on motion is observed, the examiner should indict the point at which pain begins. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain the basis for this decision. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the back due to pain or other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner concludes that an estimate of the range of motion during flare-ups cannot be provided without resorting to mere speculation, the examiner must support that opinion with a full and complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation. The examiner should also indicated whether the Veteran has any ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis if favorable or unfavorable. Additionally, the examiner should identify and comment on the existence, frequency, or extent of, as appropriate, all neurological manifestations of the Veteran's back disability. The examiner should provide an assessment of each such manifestation as mild, moderate, moderately severe or severe. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs