Citation Nr: 1801112 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE 1. Entitlement to a rating in excess of 10 percent for a left knee condition. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to January 1971. These matters come before the Board of Veterans' Appeals (Board) from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2015. The issue of increased ratings for the left knee and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left knee cartilage condition is manifested by severe pain and effusion into the joint. 2. The Veteran suffers from a painful left knee scar. CONCLUSION OF LAW 1. The criteria for a rating of 20 percent for a left knee cartilage condition have been met. 2. The criteria for a rating of 10 percent for a painful scar on the left knee have been met. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he is entitled to a rating higher than 10 percent for his left knee condition. For the forthcoming reasons, the Board will grant the minimum rating applicable given the evidence submitted for the issues detailed. Additionally, the Board will also remand the matter in order so that the Veteran may undergo an up-to-date examination. 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 comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, separate evaluations for separate and distinct symptomatology may be assigned where none of the symptomatology justifying an evaluation under one Diagnostic Code is duplicative of or overlapping with the symptomatology justifying an evaluation under another Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Additionally, if two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior in 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. With respect to joints, knee joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under Diagnostic Code 5257, 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. Under Diagnostic Code 5258, cartilage, semilunar, disclosed, with frequent episodes of locking or effusion into the joint. Under Diagnostic Code 5260, which provides ratings for limitation of motion of the knee, a noncompensable evaluation is warranted when knee flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees; and a 30 percent evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is warranted when knee extension is limited to 5 degrees; a 10 percent evaluation is warranted when extension is limited to 10 degrees; and a 20 percent evaluation is warranted when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71a, Plate II. For scars, under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). A review of the facts reveals the following: At the Veteran's January 2014 C&P examination, the Veteran explained that he suffered from increased flare-ups approximately three to four times a week. The Veteran's flexion measured 125 degrees, with pain beginning at 120 degrees. The Veteran did not suffer from any limitation of extension. Following repetitive-use testing, the Veteran's flexion ended at 125 degrees. The Veteran did not suffer from joint instability. Due to the Veteran's meniscal tear, he suffered from frequent episodes of joint pain, and a painful scar lingering from his meniscectomy. Diagnostic imaging revealed severe osteoarthritis of the left knee. At the Veteran's hearing, he testified that he suffered from an inability to get through his daily routine due to pain in his knee, an inability to straighten his leg, walk in the malls, or undergo any type of exertion. Furthermore, the Veteran stated that he suffered from frequent flare-ups, due to standing or walking for long stretches of time, in which the pain increased and his range of motion and mobility decreased. Applying the law to the facts of the case, the Board finds the Veteran eligible for a 20 percent rating under Diagnostic Code 5258 for removal of cartilage. As the Veteran testified, and as demonstrated at his C&P examination, he suffers from frequent episodes of pain and effusion into the joint due to his missing cartilage. Furthermore, the Board finds the Veteran eligible for a 10 percent rating for painful or unstable scar under Diagnostic Code 7804. The scar resulting from the Veteran's meniscectomy, the Veteran testified, is painful to the touch. Lastly, the Veteran testified at the hearing that his range of motion is greatly decreased, contrary to the results of his January 2014 C&P examination. Accordingly, an additional examination is in order before adjudication under Diagnostic Code 5260. ORDER A rating of 10 percent under Diagnostic Code 7804 is warranted. A rating of 20 percent under Diagnostic Code 5258 is warranted. REMAND The Veteran contends that he is entitled to a rating higher than 10 percent for his left knee condition. As discussed above, an additional examination is in order before adjudication. Concerning the Veteran's examination, the examiner is asked to measure the Veteran's range of motion with weight-bearing or in passive situations, as well as obtain information concerning the Veteran's flare-ups. See Sharp v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1266 (Sept. 2017) (the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." In light of Sharp, a new examination is necessary. The Veteran testified at the hearing that he retired from his job due to his knee condition; furthermore, the Veteran's treating physician submitted a note stating that the Veteran's knee condition prevented him from working. After adjudicating the Veteran's claim for an increased rating for his left knee, determine if the Veteran is eligible or TDIU. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination for his left knee to determine the nature and severity of his left knee instability and degenerative joint disease. ***The examiner must test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. a. Identify and describe all symptoms and manifestations attributable to the service-connected left knee condition. All necessary diagnostic testing and evaluation should be performed, including range of motion testing for flexion and extension. b. Indicate whether there is recurrent subluxation or lateral instability of the left knee, and, if so, describe its severity, etiology, frequency, and degree. c. Indicate whether there is dislocated semilunar cartilage and, if so, describe all related symptoms, to include frequent episodes of "locking," pain, and effusion into the joint, as well as the frequency, duration and history of these symptoms during the appeal period. d. Determine whether the left knee exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the knee, including during times when these symptoms are most problematic ("flare ups") or during prolonged, repetitive, use of the knee. e. Inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment. 2. Following adjudication of the Veteran's left knee condition, determine if he is eligible for TDIU. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs