Citation Nr: 1801423 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-35 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected left knee arthritis and patellar bursitis, status post arthroscopy, with scars. 2. Entitlement to service connection for a right foot disability, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1995 to September 2000. During his period of service, the Veteran earned the Army Achievement Medal, Army Commendation Medal, National Defense Service Medal, Kosovo Campaign Medal (with 1 Bronze Star), Good Conduct Medal, Army Service Ribbon, and Driver and Mechanic Badge (Driver with Bar). This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was previously remanded in November 2015 and March 2017 for further development. The issue of entitlement to service connection for a right foot disability, to include as secondary to a service-connected disability, 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 Veteran's left knee disability manifested with x-ray evidence of arthritis; flexion limited to, at worst, 95 degrees; extension limited to, at worst, 0 degrees; painful motion; and symptoms including pain, swelling, crepitus, locking, and tenderness. 2. In resolving all doubt in his favor, the Veteran's right knee has manifested in frequent episodes of locking, pain, and effusion. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal, the criteria for a rating in excess of 10 percent for the Veteran's left knee arthritis and patellar bursitis, status post arthroscopy, with scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5010 (2017). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate disability rating of 20 percent for left knee locking, pain, and effusion under DC 5258 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, DC 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38 C.F.R. § 4.40 (2017). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (2017). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2017). In this case, the Veteran's service-connected left knee disability is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5010, due to painful or limited motion of a major joint with x ray evidence of arthritis. Under Diagnostic Code 5010, arthritis due to trauma and substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved in noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. 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 assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent is assigned with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017). Diagnostic Codes 5260 and 5261 provide the criteria for rating limitation of motion of the knee and leg. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2017). Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion of the leg limited to 60 degrees. A 10 percent rating is assigned for flexion of the leg limited to 45 degrees. A 20 percent rating is assigned for flexion of the leg limited to 30 degrees. A 30 percent rating is assigned for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Under Diagnostic Code 5261, a noncompensable rating is assigned for extension of the leg limited to 5 degrees. A 10 percent rating is assigned for extension of the leg limited to 10 degrees. A 20 percent rating is assigned for extension of the leg limited to 15 degrees. A 30 percent rating is assigned for extension of the leg limited to 20 degrees. A 40 percent rating is assigned for extension of the leg limited to 30 degrees. A 50 percent rating is assigned for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004); 38 C.F.R. § 4.14. Consideration of a higher evaluation for functional loss, to include during flare-ups, due to these factors accordingly is warranted for diagnostic codes predicated on the veteran's limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. Private treatment records from July 2008 show that the Veteran's left knee had extension to 0 degrees and flexion to 125 degrees on active motion. On passive motion, the Veteran's left knee had extension to 0 degrees and flexion to 130 degrees. Pain began at 115 degrees. The Veteran complained of continuous pain, particularly during cold and wet times of year, and sensitivity when kneeling down. The examiner diagnosed arthritis, as well as an onset of a femur-patellar arthrosis, chronic pre-patellar bursitis, and chronic periostitis of the medial tibial surfaces in the distal one-third. The Veteran underwent a private examination in March 2009. The Veteran's left knee showed painful movement reduction at the end of the range of motion (0-5-95 degrees). The examiner diagnosed left knee joint distortion, with a long-term diagnosis of arthralgia of the left knee joint. An April 2009 MRI revealed joint effusion and signs associated with torn meniscus. The Veteran was diagnosed subsequently diagnosed with third degree retropatellar arthrosis of the left knee with lateral meniscus fiber straying. He underwent arthroscopic surgery on the left knee joint, including cartilage shaving of the back of the patella, smoothing of the lateral meniscus and partial synovectomy with reduction of the infrapatellar fat body. In July 2009, the Veteran requested an increased evaluation for his left knee disability, stating that his knee had gotten worse. The Veteran reported cracking, grinding, extreme pain, and swelling. The Veteran appeared for an examination in August 2009. The examiner noted that the Veteran's symptoms did not improve after the surgery and convalescence. The Veteran continued to suffer from chronic pain that had an intensity of 8 and averages between a 7 and 10. The Veteran reported that the knee is chronically swollen and inflamed. Minimal effusion was noted in the suprapatellar recess. The lateral ligaments were stable at 0 degrees and 30 degrees flexion position. The Veteran's knee had extension to 0 degrees and flexion to 95 degrees on active motion. On passive motion, the Veteran's left knee had extension to 0 degrees and flexion to 132 degrees. There was significant pain in the medial joint compartment and femoropatellar groove from 85 degrees flexion. The Veteran underwent a VA knee examination in January 2016. The examiner diagnosed knee strain and small effusion in the left knee. The Veteran reported that his left knee pain was getting worse. He reported flare-ups, which manifested as dull, aching pain with swelling and lock-ups requiring him to stretch his leg. The Veteran's knee had extension to 0 degrees and flexion to 100 degrees. Pain was noted on flexion, extension, and with weight bearing. There was objective evidence of localized tenderness and crepitus. Joint stability testing was normal. The Veteran appeared for a VA knee examination in April 2017. The Veteran reported pain that became worse with standing. The Veteran's knee had extension to 0 degrees and flexion to 110 degrees. Pain was noted on flexion. There was objective evidence of crepitus. Muscle strength testing was normal. Upon review of all the evidence of record, lay and medical, the Board finds that Veteran's left knee disability does not warrant more than a 10 percent disability rating under the diagnostic codes relating to limitation of motion. There is no evidence of flexion limited to 30 degrees or extension limited to 15 degrees to warrant an increased or separate rating based on limitation of motion. The Veteran's left knee limitation of motion has been noncompensable throughout the appeals period. Despite this, he has been assigned a 10 percent evaluation for his reports of painful motion. See Mitchell, supra. Although a rating in excess of 10 percent cannot be granted for arthritis or limitation of motion of the left knee, the Board does find that a separate rating is warranted under DC 5258, which contemplates dislocation of the semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. The Veteran underwent arthroscopic surgery to smooth the outer meniscus, along with a partial synovectomy in April 2009, and his left knee has remained symptomatic since that time. He has consistently complained of pain, swelling, and instances of locking. The Board finds that the Veteran is competent to report these symptoms, as these are observable symptoms and there is no evidence indicating the statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, and resolving every possible doubt in the Veteran's favor, the Board finds that a separate 20 percent rating for the left knee is warranted under Diagnostic Code 5258 since his April 2009 surgery. See Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). Twenty percent is the maximum evaluation available under Diagnostic Code 5258. The Board notes that the 20 percent rating assigned herein is a separate rating in addition to the currently assigned 10 percent evaluation for painful motion. There is no indication that the Veteran's left knee disability warrants an increased rating under any other diagnostic code relating to the knees. The claims folder contains no medical evidence indicating that the Veteran's left knee disability is manifested by ankylosis; recurrent subluxation or lateral instability; impairment of the tibia and fibula; genu recurvatum; or symptoms other than those discussed above. As such, an increased rating cannot be assigned under Diagnostic Codes 5256-5257 or 5262-5263. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5257, 5262-5263 (2017). Further, the Board notes that there is no indication in the medical evidence of record that the Veteran's left knee symptomatology warranted other than the currently assigned disability ratings throughout the appeal period. The assignment of staged ratings is not warranted. See Fenderson, supra. For all of the foregoing reasons, the Board finds that the above ratings are appropriate for the left knee throughout the appeals period. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims of entitlement to an increased rating, in excess of the separate rating granted herein, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to an initial evaluation in excess of 10 percent for service-connected left knee arthritis and patellar bursitis, status post arthroscopy, with scars is denied. Entitlement to a separate 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint is granted subject to controlling regulations applicable to the payment of monetary benefits. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim for service connection for a right foot disability, to include as secondary to a service-connected disability. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that his right foot disability is secondary to his service-connected knee disabilities. The Veteran was afforded an examination in January 2016, at which time the examiner diagnosed right foot insertional Achilles tendon enthesophyte. The examiner opined that the Veteran's right foot disability was less likely than not incurred in or by service. The examiner, however, did not provide an opinion as to whether the Veteran's right foot disability was caused or aggravated by a service-connected disability. Pursuant to a March 2017 Board remand, the Veteran underwent a VA foot examination in April 2017. The examiner was instructed to opine whether it was at least as likely as not that any diagnosed right foot disability was proximately due to or caused by the Veteran's service-connected disabilities or was otherwise aggravated by the Veteran's service-connected disabilities. The examiner opined that there was insufficient evidence to support any current diagnosis of any bilateral foot condition; thus, offered no opinion regarding secondary service connection. The examiner opined that it was more likely than not that any current subjective foot symptoms this Veteran may have been experiencing were due to his morbid obesity, which caused an increased mechanical load on his feet and other weight bearing joints. In light of the foregoing, the Board finds that there are conflicting medical opinions in the record as to whether the Veteran currently has a right foot disability. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Thus, this issue must also be remanded to obtain a new VA examination and opinion. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to evaluate the claim for service connection for a right foot disability, to include as secondary to a service-connected disability. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, private medical records, and the Veteran's own assertions. The Veteran's claims folder and this remand must be made available to the examiner for review in conjunction with the examination. Consideration of such should be reflected in the complete examination report. The examiner should respond to the following: (a) Does the Veteran have a currently diagnosed right foot disability? In answering this question, please reconcile the opinion with prior diagnosis of right foot insertional Achilles tendon enthesophyte in January 2016. (b) If the examiner determines that a right foot disability exists, the examiner should opine if it is at least as likely as not (50 percent or greater probability) that the Veteran's right foot disability was caused or permanently aggravated beyond its natural progression by a service-connected disability, to include a left knee disability, right knee disability, or shin splints. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's morbid obesity was caused or permanently aggravated beyond its natural progression by a service-connected disability, to include a left knee disability, right knee disability, or shin splints? If so, is it at least as likely as not (50 percent or greater probability) that the Veteran's right foot disability was caused or permanently aggravated beyond its natural progression by obesity? The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 2. Then, and after conducting any additional development deemed necessary, the AOJ should readjudicate the Veteran's claims for service connection for a right foot disability, to include as secondary to a service-connected disability. If the benefits sought remain denied, provide a supplemental statement of the case to the Veteran and his representative and an appropriate period of time for response. The case should be returned to the Board for further consideration, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs