Citation Nr: 1803168	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  11-02 961	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for right knee limitation of motion, associated with right knee reconstruction. 

2.  Entitlement to a rating in excess of 20 percent for right knee lateral instability, associated with right knee reconstruction. 

3.  Entitlement to a rating in excess of 10 percent for a right knee scar, associated with right knee reconstruction. 

4.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. 


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and his sister


ATTORNEY FOR THE BOARD

K. Ciardiello, Associate Counsel 


INTRODUCTION

The Veteran had active service in the United States Army from April 1978 to July 1985. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio

The Veteran testified at a Board hearing held in September 2017.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


FINDING OF FACT

Since October 26, 2009, the Veteran's right knee is manifested by painful motion throughout the period on appeal.


CONCLUSION OF LAW

Effective October 26, 2009, the criteria for a rating of at least 10 percent for right knee limitation of motion are met for the entire period on appeal.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule 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 their residual disorders in civil occupations.  See 38 U.S.C. § 1155 (2017); 38 C.F.R. §§ 3.321(a), 4.1 (2017).

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 (2017).

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999).

The Veteran filed this claim on October 26, 2009, and asserts that a higher rating is warranted for his service-connected right knee disability, which is currently rated as 20 percent disabling under DC 5257 for right knee instability, 10 percent for limitation of motion and 10 percent for his right knee scar imder DC 7804.  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The United States Court of Appeals for Veterans Claims (Court) clarified that 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).

Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

The United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record.  Burton v. Shinseki, 25 Vet. App. 1 (2011).

Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be 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 is 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.  

DC 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees.  A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees.  A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees.  A 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at the angle of 45 degrees or more.  38 C.F.R. § 4.71a, DC 5256. 

DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides for a 10 percent disabling for a slight impairment; a 20 percent disabling for a moderate impairment; and a 30 percent disabling for a severe impairment.  

Under DC 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned.  38 C.F.R. § 4.71a, DC 5258.  

Under DC 5259, when semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned.  38 C.F.R. § 4.71a, DC 5259.  

Under DC 5260, which evaluates limitation of flexion, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.  38 C.F.R. § 4.71a, DC 5260. 

Under DC 5261, which evaluates limitation of extension, a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees.  38 C.F.R. § 4.71a, DC 5261. 

DCs 5262 and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively.

Separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same knee joint.  See VAOPGCPREC 9-2004.  Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258-9) without violating the prohibition of pyramiding of ratings.  It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261.

The Veteran is currently in receipt of a 10 percent rating for limited motion under DC 5260, effective April 13, 2017.  The Board finds that this rating is warranted throughout the appeal, i.e., since October 26, 2009.  Where a Veteran has a noncompensable rating for a musculoskeletal disability and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  In this case, the evidence shows the Veteran's right knee has been manifest by painful motion throughout the appeal period.  See April 2017 VA Examination.  Thus, the Board finds that a rating of at least 10 percent is warranted throughout the appeal period for painful motion of the Veteran's right knee.  The issue of entitlement to a rating in excess of 10 percent is addressed in the remand portion of this decision.


ORDER

Subject to the law and regulations governing payment of monetary benefits, a rating of 10 percent for painful motion of the right knee is granted effective October 26, 2009. 


REMAND

The Board finds that the appeal must be remanded to afford the Veteran with a new VA examination. 

Since the Veteran's last VA examination in April 2017, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so."  Thus, in light of the Court's determination in Sharp, the Board finds that these matters must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups.  

The Board finds that remand is also required to ensure compliance with the holdings of Correia, specifying that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  As the April 2017 examination did not provide range of motion values for active and passive motion, a new examination must be provided.  See Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

In addition, the Veteran has challenged the adequacy of the April 2017 examination, stating that his right knee was not evaluated using a goniometer, and that range of motion values were inaccurately approximated.  See September 2017 Hearing Transcript at 4. 

In light of the forgoing, the Board finds that the Veteran should be afforded a new VA examination that complies with the holdings of Correia and Sharp, and that utilizes adequate examination procedures. 

Finally, as the issue of entitlement to a TDIU has been raised by the evidence of record in this case, it is inextricably intertwined with increased rating claim on appeal, and appellate consideration of the TDIU is deferred pending resolution of the increased rating claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain any outstanding VA medical records and associate them with the Veteran's claims file.

2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of and/or were contemporaneously informed the extent and severity of his right knee disability, to include due to any treatment he receives for this condition.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3. Provide the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and provide the Veteran an appropriate period of time to submit such evidence.

4. Schedule the Veteran for a VA examination to determine the current nature and severity of his right knee disability.  The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner.  All indicated tests should be conducted, and all findings reported in detail.

It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion.  The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination.  

Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted.  

The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right knee symptoms and/or after repeated use over time.  

Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.

5. Then readjudicate the appeal.  If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration.

The Veteran has the right to submit additional evidence and argument on 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).





_________________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs