Citation Nr: 1803015 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 09-47 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for chondromalacia patella, left knee, with residuals of internal derangement (left knee disability). 2. Entitlement to a disability rating in excess of 10 percent for chondromalacia patella, right knee, status post arthroscopy with chondroplasty (right knee disability). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claims for increased disability ratings for his bilateral knee disabilities. The issues of increased disability ratings for the Veteran's bilateral knee disabilities were originally before the Board in March 2013 and February 2016, where they were remanded for additional development. They have since been returned to the Board for further appellate review. Entitlement to a TDIU is reasonably raised by the record and is thus included on the title page of this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2010, the Veteran testified at a formal hearing before a Decision Review Officer as to his knee disability claims. A transcript of the hearing is of record. The Board notes that the record contains a timely notice of disagreement to an August 2016 rating decision denying the Veteran's claims for entitlement to service connection for a back condition, diabetes mellitus type II, headaches, neuropathy of the upper and lower extremities, a bilateral eye condition, hypertension, Chron's disease, and a heart disability, as well as the effective date and disability rating for other specified anxiety and depressive disorder. The RO has recognized this appeal by sending the Veteran a follow up letter explaining the next steps and entering it into VA's appeals locator system (VACOLS). Hence, it is unnecessary to remand these issues as a statement of the case from the RO is forthcoming. The issues of entitlement to a higher disability rating for a right knee disability and entitlement to a 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 disability has been manifested by semilunar cartilage, dislocated, with frequent episodes of locking, pain and effusion to the joint. 2. Left knee flexion has not been limited to 60 degrees or less and extension has not been limited to 5 degrees or more. The disability did not result in recurrent subluxation, ankylosis, or instability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran's left knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks an increased rating in excess of 20 percent for his left knee disability. The Board finds that an increased rating is not warranted. Disabilities ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from diseases or 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides that flexion of the leg limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides that extension of the leg limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a 0 percent (noncompensable) rating. 38 C.F.R. § 4.71a. For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2017); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. When the knee disability affects the meniscus, a 10 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 20 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). The Board notes that, in this case, the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application. The Veteran's chondromalacia patella, left knee with residuals of internal derangement, is currently assigned a 20 percent disability rating under Diagnostic Code 5258, which provides a rating for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. While Diagnostic Code 5258 does not afford a rating above 20 percent, the Board will consider whether he is entitled to higher or separate ratings under all other applicable diagnostic codes for knee disabilities. The Veteran underwent VA examinations related to his increased rating claim in April 2008, May 2010, and July 2012. In January 2016, the Veteran's representative reported that the Veteran's knee disability had worsened since the most recent examination. The Board remanded the Veteran's claim in February 2016 for a more current VA examination and updated VA and private treatment records to determine the current severity of the Veteran's knee disabilities. The examination was performed in May 2016. Upon VA examination in April 2008, the Veteran reported flare-ups of pain in his left knee when climbing stairs, but exhibited full range of motion. Pain was noted with flexion at 130 degrees. Increased pain was noted with repetitive use testing, however full range of motion remained. No instability was observed. In May 2010, VA examination revealed a left knee range of motion from zero degrees extension to 134 degrees flexion. There was objective evidence of pain with active motion with only the right knee, with no additional limitation after three repetitions of range of motion. The Board notes that the examination seemed to address instability as to only the right knee, which the examiner noted no issues. The examiner also noted intermittent, occasional use of a cane for only the right knee. In July 2012, the Veteran reported pain in both knees. He denied flare-ups. Examination revealed a left knee range of motion from zero degrees extension to 70 degrees flexion. There was no additional limitation in range of motion after three repetitions, but the examiner did note functional loss after repetitive use, including less movement than normal, weakened movement, and pain on movement bilaterally. The examiner also noted localized tenderness or pain on palpitation of the joint or associated soft tissue on both knees. Muscle strength and joint stability were normal. An X-ray report noted degenerative arthritis in the right knee only. In May 2016, the Veteran complained of bilateral knee pain (including with weight bearing and range of motion), tenderness, and evidence of crepitus. Range of motion testing of the left knee showed flexion to 90 degrees with pain exhibited, and normal extension. Range of motion testing on both knees was noted to contribute to functional loss, including difficulty kneeling, bending, squatting, prolonged walking, standing, sitting and climbing stairs. The Veteran did not report flare-ups of the knee. The Veteran performed repetitive use testing and exhibited no additional functional loss or limitation of motion after three repetitions. As to repetitive use over time, the examiner noted that, it was not possible to predict a potential loss of range of motion within a reasonable degree of medical certainty due to repetitive use over time outside of the clinical setting without resorting to mere speculation, as the Veteran was not being observed after repeated use. The examiner did note pain with weight-bearing and localized tenderness or pain on palpitation of the joint or associated soft tissue bilaterally. In addition, the Veteran exhibited a reduction in muscle strength in both knees, noting active movement against some resistance, as well as slight medial instability of the right knee but not the left. The examiner noted regular need for the assistance of a cane, as well as a knee brace. X-ray reports noted degenerative arthritis in both knees. Based on the foregoing, the preponderance of the evidence is against a finding that a rating in excess of 20 percent for the Veteran's left knee disability is warranted. 38 C.F.R. §§ 4.3, 4.7, 4.71a. As noted above, the Veteran is currently rated under Diagnostic Code 5258 for his left knee, which provides a rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. In this case, the Veteran's limitation of motion and pain is contemplated by the rating assigned under Diagnostic Code 5258, and a separate rating for limitation of motion would constitute pyramiding. See 38 C.F.R. § 4.14; VAOPGCPRECs 23-99 and 9-93. Notably, flexion has been limited to at most 70 degrees and extension has been normal upon examination, to include after repetitive use, during flare ups, or as a result of other functional limitations. Thus, a separate rating for the Veteran's left knee is not warranted for limitation of flexion or extension under Diagnostic Codes 5260 or 5261. In addition, as the evidence does not show symptomatic removal of semilunar cartilage in the left knee, a rating under Diagnostic Code 5259 is also not warranted. 38 C.F.R. § 4.71a. Further, a separate rating for the left knee is not warranted under Diagnostic Code 5257. Id. While the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests designed to reveal instability and laxity of the joints, which were performed in this case by medical professionals. The Board notes that, subsequent to the May 2016 VA examination, the Veteran was awarded a separate 10 percent disability rating for the right knee due to findings of slight instability. The evidence is against a finding, however, that any instability exists in the Veteran's left knee, as both knees were stable on testing at earlier examinations, and slight instability was observed only in the right knee in May 2016. The Board recognizes that it is the intent of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran is already assigned a 20 percent rating for his left knee under Diagnostic Code 5258, which is more than the minimum compensable rating allowable for the knee joint. 38 C.F.R. § 4.71a. The Board has considered whether there is any other basis for further granting the above claims but has found none. The Board acknowledges the Veteran's lay statements, and notes that he is competent to report his own observations with regard to the severity of his knee disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. 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, 369-370 (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 a disability rating in excess of 20 percent for chondromalacia patella, left knee, with residuals of internal derangement, is denied. REMAND While the Board regrets further delay, remand is again necessary for additional development. The Veteran's chondromalacia patella, right knee status post arthroscopy with chrondoplasty, is currently assigned a 10 percent disability rating under Diagnostic Code 5260, based on painful motion of the knee. The Veteran's is also separately rated for right knee medial instability, currently evaluated as 10 percent disabling effective May 4, 2016, under Diagnostic Code 5257. 38 C.F.R. § 4.71a. As noted above, the Veteran's claims for increased ratings for his knee disabilities was previously before the Board in February 2016, where they were remanded to afford the Veteran a new VA examination. The examination was provided in March 2016. However, VA treatment records associated with the Veteran's claims file indicates that he underwent a total knee replacement surgery on his right knee in approximately June 2017. As the Veteran's claims file contains no additional information as to the current severity of the right knee disability since his surgery, a supplemental VA examination is necessary to resolve the Veteran's right knee claim with consideration of all pertinent records. In addition, in the Veteran's April 2010 hearing testimony, he reported that he was unemployed. In the May 2016 VA examination, it was noted that the Veteran reported that he was again unemployed, and felt his knee disabilities impacted his ability to work. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU, whether expressly or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice, 22 Vet. App. at 447. Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 453-54. However, this issue is not yet ripe for review and must be remanded for additional development. See VAOPGCPREC 6-96. The Veteran has not submitted a formal application for a TDIU and has not been provided with notice appropriate for his claim for entitlement to a TDIU. Such must be remedied on remand. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify any remaining outstanding treatment records relevant to his claims, to include treatment records pertaining to his right knee replacement. All identified VA records should be added to the claims file. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Schedule the Veteran for a VA knee examination. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted and all conditions diagnosed. The symptoms and severity of the right knee disability should be detailed to include functional limitations associated with the damaged joint. If the examiner is unable to conduct any of 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. 3. Request that the Veteran complete a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and issue the Veteran notice consistent with his claim of entitlement to a TDIU. 4. After the above has been accomplished, the AOJ should ensure the file contains up to date information detailing the functional effects of the Veteran's service-connected disabilities, which currently include an anxiety and depressive disorder, bilateral knee disabilities, right knee medial instability, bilateral hearing loss, tinnitus, residuals of a left hand injury, and residuals of a left radial head fracture. If additional examinations or opinions are necessary to ascertain the current functional effects, additional action should be taken. 5. After completing the above actions, and any other development deemed necessary, the AOJ should further adjudicate the Veteran's right knee and TDIU claims. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs