Citation Nr: 1803696 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-11 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a rating higher than 10 percent for post-operative residuals of shrapnel fragment wound (SFW), with scar, right knee. 2. Entitlement to a rating higher than 10 percent for post-operative residuals of SFW, with scar, left knee. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968. His service included a tour in Vietnam, and his decorations include the Purple Heart. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2013 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO) that continued 10-percent ratings for each knee. The Board issued prior remands in this appeal in September 2015, February 2016, and August 2016. FINDINGS OF FACT 1. Prior to August 26, 2016, the Veteran's post-operative SFW residuals of the knees manifest orthopedically with no muscle injury and noncompensable limitation of motion (LOM) of each knee. The scar manifested as asymptomatic. 2. As of August 26, 2016, the post-operative SFW residuals manifested orthopedically with no muscle injury and noncompensable LOM of each knee; and, neurologically with associated femoral nerve neuritis of the surgical scar residual of each lower extremity (LE). CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 10 percent for post-operative orthopedic SFW residuals, right knee, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5257, 5260, 5261 (2017). 2. The requirements for an evaluation higher than 10 percent for post-operative orthopedic SFW residuals, left knee, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.71a, DCs 5257, 5260, 5261. 3. The requirements for an initial evaluation not to exceed 10 percent for SFW-associated scar neuritis, femoral nerve, RLE, are met as of August 26, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.400(o), 4.1, 4.10, 4.118, 4.124a, DC 7805-8626. 4. The requirements for an initial evaluation not to exceed 10 percent for SFW-associated scar neuritis, femoral nerve, LLE, are met as of August 26, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.400(o), 4.1, 4.10, 4.118, 4.124a, DC 7805-8626. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to issuance of the February 2013 rating decision, via a November 2012 letter, VA provided the Veteran with notice. Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and VA treatment records, including the VA examination reports are in the claims file. Further, the Board remanded the case in August 2016 for a more current examination; the report of an examination dated later that month has been associated with the claims file. Neither the Veteran nor his representative has asserted that there are additional records to obtain; and, neither has asserted any inadequacy in the examination conducted in 2012 or the most recent one in 2016. 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 duty to assist argument). As such, the Board will proceed to the merits of the appeal. Applicable Law and Regulation Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 LOM, 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, 4.45. In DeLuca, the Court stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. Arthritis due to trauma is a component of the Veteran's bilateral knee disability. DC 5010 provides that arthritis due to trauma is rated as degenerative arthritis under DC 5003, which provides that degenerative arthritis established by X-ray is rated on the basis of LOM under the appropriate DC for the joint involved. Further, if the LOM of the joint involved is noncompensable, a rating of 10 percent is applicable. Id. LOM must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of LOM, but with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and occasional incapacitating exacerbations, a 20-percent evaluation is assigned. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5003. With any form of arthritis, painful motion is an important factor. Further, this criterion may be shown by lay evidence. See Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) (explaining that § 4.59 "serves as a bridge linking painful motion and LOM, with the result that a claimant who has painful motion is considered to have limited motion under [the relevant diagnostic code] even though actual motion is not limited"). It is the intention 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. A compensable evaluation under DC 5003 and 38 C.F.R. § 4.59 (for painful motion) is in order where arthritis is established by X-ray findings and no actual LOM of the affected joint is demonstrated. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (holding that painful motion of a major joint or group of minor joints caused by degenerative arthritis is deemed to be limited motion such that a minimum compensable rating is warranted under 5003 even though there is no actual LOM); see also Petitti, 27 Vet. App. at 427-28 (holding that painful motion may be "objectively confirmed" by either a clinician or a layperson who witnessed the veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain. Where compensable LOM is demonstrated in the joint, the Lichtenfels rule is not applicable because the rating would apply the DC for LOM of the appropriate musculoskeletal body part. Even without X-ray findings of arthritis, but with evidence of pain throughout the ROM, the minimum compensable rating is warranted, even if the LOM is otherwise noncompensable per 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that painful motion warrants the assignment of the minimum compensable rating for limitation of motion of the affected joint); but higher ratings require actual limitation or functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-38, 43 (2011) (reaffirming that pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," 38 C.F.R. § 4.40, in order to constitute functional loss). History Documents in the STRs reflect that while serving as a medic the Veteran sustained SFWs to both LEs in May 1967 that inflicted left tibial and right patella fractures. X-rays showed one retained metallic fragment in the RLE and multiple in the LLE. Follow-up treatment revealed that debridement was not needed, as the wounds were clear. (07/22/1971 STR-Medical, p. 10) VA received the Veteran's claim for compensation in July 1971. (07/23/1971 VA Form 21-526) A December 1971 rating decision reflects that an X-ray showed multiple metallic fragments in both knees that caused fractures. It noted further that in-service physical therapy resulted in improved ROM for each knee, and that the Veteran was returned to full duty as a member of an air evacuation team. Service connection was granted with an initial 10-percent rating for each knee, effective in July 1971, as the rating board determined that the disability was permanent. The rating decision noted that another examination would be conducted in one year to assess the residuals. The disability was assigned under DC 5257. (12/19/1971 Rating Decision) A July 1972 examination report reflects that the Veteran complained of occasional stiffness and sharp pain in both knees. (08/04/1972 VA Examination) Physical examination revealed that his gait was not disturbed, ROM in each knee was full, the ligaments were intact, crepitus was absent, and the scars were well healed but somewhat depressed with somewhat fixed deep tissues. (08/02/1972 Medical Treatment Record-Government Facility) An August 1972 rating decision continued the minimum compensable rating and noted that the probability of improvement was remote. (08/04/1972 Rating Decision) Subsequently, VA received the Veteran's current claim for an increased rating in October 2012. (10/30/2012 VA Form 21-4138) Rating Criteria As noted, the RO assigned DC 5257, which rates other impairment of the knee, specifically recurrent subluxation or lateral instability. Severe symptoms warrant a 30-percent rating; moderate, 20 percent; and slight, 10 percent. 38 C.F.R. § 4.71a. As for the LOM component, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10-percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20-percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30-percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Separate ratings may be assigned for compensable LOM on flexion and extension. See VAOPGCPREC 9-2004 (Sept. 17, 2004), 69 Fed. Reg. 59,990 (2004). Limitation of extension to 10 degrees warrants a 10-percent rating; to15 degrees, 20 percent, with an allowable maximum of 50 percent, for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal ROM of the knee is 0 to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. Discussion Initially, the Board notes that the Veteran's rating under DC 5257 is protected, as it has been in effect for 20+ years. 38 C.F.R. § 3.951(b). Further, the Board acknowledges that separate ratings are allowable where the clinical evidence of record shows both LOM and non-LOM symptomatology. See VAOPGCPREC 9-98 (Sept. 8, 1998); 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). Nonetheless, while DC 5257 is generally deemed to evaluate non-LOM symptomatology, it is the medical evidence of record that determines whether separate ratings are allowable. See Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). As noted earlier, although the RO assigned the initial rating under DC 5257, based on the medical findings, both in- and post-service, the RO evaluated the disability on the basis of LOM. Thus, as discussed in this decision, the Board finds that separate ratings are not in play unless there is evidence of recurrent subluxation or lateral instability. See id. (finding that ratings under DC 5257 and 5261 do not preclude ratings under DCs 5258 or 5259, and vice versa). The November 2012 VA examination report reflects that the Veteran reported that he was a postal worker, and he complained of daily sporadic pain and stiffness secondary to constant weight bearing. He reported flare-ups due to the weather, but the only specific he provided was that he noticed the dampness. The Veteran reported further that he used over-the-counter (OTC) analgesics and sleep aids when the pain disturbed his sleep. The Veteran reported that when his pain was particularly acute, he rested. He reported occasional use of an Ace wrap for support. Physical examination revealed tenderness to palpation of each knee. ROM of each knee was 0 to 100 degrees with pain at the end point on the right, and without objective evidence of pain on the left. Muscle strength was 4/5 bilaterally. The objective evidence on clinical examination showed that each knee continued to manifest at the assigned 10-percent rate, as the LOM of each knee was noncompensable. A compensable rating was not met or approximated, as ROM on flexion was greater than 0 to 45 degrees, and extension was normal. 38 C.F.R. § 4.71a. DC 5260. The examiner noted that the Veteran's functional loss was less movement than normal, weakened movement, excess fatigability, swelling, and interference with sitting and standing. He was able to perform repetitive-use testing; however, such revealed no additional loss of ROM. Hence, a higher rating is not warranted on that basis. See 38 C.F.R. §§ 4.40, 4.45. Physical examination also revealed that the ligaments of each knee were stable. Further, the examiner noted that there was no history of recurrent subluxation; and, that there was no history of meniscus or cartilage symptoms. Hence, there is not factual basis for a separate rating due to recurrent subluxation, lateral instability, or cartilage symptoms. See 38 C.F.R. § 4.71a, DCs 5257, 5258, 5259. (11/27/2012 VA Examination, p. 1-13) As noted earlier, the Veteran's SFW residuals include a surgical scar on each knee. A superficial scar not of the head, face, or neck of a total area of 929 sq cm or greater warrants a 10-percent rating. 38 C.F.R. § 4.118, DC 7802. A superficial scar is one not associated with underlying soft tissue damage. Id., Note (1). A scar that is unstable or painful on examination also warrants a 10-percent rating. DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note (1). The scar portion of the examination revealed a superficial non-linear scar of a total area of 32 sq cm on the right knee, and 38 sq cm on the left knee. The examiner noted that both scars were not painful. In light of the objective findings on clinical examination, a compensable rating for a superficial scar was not met, as the total area of each scar is less than 929 sq cm, and the examiner noted that each scar was not painful. 38 C.F.R. § 4.118, DCs 7802, 7804. The examinations notwithstanding, the Board still notes the examination findings of 1972 that noted somewhat fixed deep tissues. That finding could indicate a non-linear deep scar not of the head, face, or neck. A 10-percent rating is warranted for such a scar of a total area of 39 sq cm or greater. DC 7801. Nonetheless, each scar is less than 39 sq cm. Further, as noted, the examiner at the 2012 examination determined that both scars were superficial. Hence, in light of all of the above, a factual basis for a separate compensable rating for the scar residual was not shown by the evidence of record as of the November 2012 examination. As noted earlier, the Board remanded the case for a current examination. The August 2016 examination report (08/26/2016 C&P Exam, 2nd Entry) reflects that the examiner noted diagnoses of record of degenerative arthritis of each knee and retained metallic fragments in each knee. The Veteran denied receiving any current treatment. He reported that he walked a mile a day, which required 20 minutes for him to do, and that he used a knee brace about once a month, and a cane on occasion. He denied use of ice or heat but reported that he elevated his knees daily in his recliner, and that he used OTC or NSAIDs for pain relief. The Veteran reported further that his right knee was worse than the left, and he denied any locking or giving away. He stated that his main issue was stairs. The Veteran reported daily flare-ups without any specific symptoms, but he denied any functional loss due to use over time. Physical examination revealed tenderness to palpation of the soft tissue or joint line. ROM was 0 to 90 degrees bilaterally. The examiner noted evidence of pain on weight bearing, and that there was evidence of pain on ROM but that it did not cause functional loss. There was evidence of crepitus in each knee. Muscle strength in each knee was 4/5. (Exam Report, p. 1-5) The objective evidence on clinical examination showed that the orthopedic symptoms of each knee continued to manifest at the assigned 10-percent rate, as the LOM of each knee was noncompensable. 38 C.F.R. § 4.71a, DC 5260. The earlier discussion of why a higher rating was not met or approximated is incorporated here by reference. See 38 C.F.R. §§ 4.40, 4.45. The Board notes that the examiner indicated that she could not determine any potential functional loss due to repeat use over time without resorting to speculation. (See Exam Report, p. 4-7) The Court has recently held that such a response by an examiner will render an examination inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board distinguishes the instant case from Sharp. In this case, the Board finds no inadequacy, as the Veteran specifically denied any functional loss due to repeat use over time. Hence, the objective findings on examination are not compromised and reflect the Veteran's knee disability picture. The Board also notes the finding of decreased muscle strength. As discussed earlier, the STRs noted that there was no muscle or nerve damage due to the shrapnel fragments. Further, the examiner noted that there was no muscle injury involved. (See 2012 Exam Report, p. 26) Hence, the Board finds no factual basis for a separate rating for a muscle group injury. The examination report reflects that the examiner noted that the Veteran's scar residuals were unchanged from the prior examination as concerned the total area of each scar. (08/26/2016 C&P Exam, 2nd Entry, p. 10-11) In a separate report, the examiner noted a diagnosis of neuritis around the surgical scar without symptoms attributable to a peripheral nerve. (08/26/2016 C&P Exam, 1st Entry, p. 1-2) The AOJ did not address or otherwise comment on the examiner's finding of femoral nerve neuritis. See 10/26/2016 SSOC. Nonetheless, as the scar residual is a part of the Veteran's increased rating claim that is before the Board, it is within the Board's jurisdiction to allow appropriate separate ratings for all symptoms of the Veteran's disability shown by the evidence of record. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (stating that separate ratings are available for different symptoms of a disability). The scar rating criteria provide that disabling effects of a scar not considered under DCs 7800-7804 are rated under the appropriate DC. 38 C.F.R. § 4.118, DC 7805. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Severe incomplete paralysis, in general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability, trophic changes may be seen in severe longstanding neuropathy cases, with signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve. See VBA Adj. Manual M21-1, III.iv.4.G.4.c. Femoral nerve pathology is rated under 38 C.F.R. § 4.124a, DC 8526, neuritis, 8626. Complete paralysis of the nerve is manifested by paralysis of quadriceps extensor muscles, and is rated at 40 percent. Severe incomplete paralysis is rated at 30 percent; moderate severity, 20 percent; and, mild, 10 percent. Id. Physical examination revealed muscle strength of 4/5 on knee extension, and ankle dorsiflexion and plantar flexion, all bilaterally. See 38 C.F.R. § 4.71a, Plate II. Deep tendon reflexes of the LEs were 2+, and sensation was decreased at the lower leg and ankle bilaterally. Although the examiner noted that the decreased sensation was for the L4/L5/S1 distribution, the examiner noted further that the sciatic nerve was normal. Id.at 3. The examiner noted that the neuritis was associated with the anterior crural (femoral) nerve and assessed the severity as mild. Also noted was that there were no tropic changes, and there was no loss of use of the LEs as a result of the neuritis, and it had no impact on the Veteran's ability to work. Id. at 4-7. As discussed earlier, service connection for the orthopedic manifestations of the Veteran's SFWs is in effect and are rated separately. In light of the fact that the Veteran's primary functional loss is sensory, with slight decrease in muscle strength, the Board finds that, when compared to complete paralysis of the femoral nerve, the disability more nearly approximates mild severity. See 38 C.F.R. §§ 4.1, 4.10, 4.124a, DC 8626; see also Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (holding that, "[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level"). The evidence of record does not show neuritis to have manifested prior to the date of the August 2016 examination. Hence, the separate rating is effective as of August 26, 2016. 38 C.F.R. § 3.400(o). As noted earlier, the Veteran is entitled to a staged rating for any part of the rating period where his disability manifested at a more severe rate. The discussion above shows that the Board has allowed a staged rating in accordance with the evidence of record. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). (CONTINUED ON NEXT PAGE) ORDER A rating higher than 10 percent for post-operative residuals of SFW, with scar, right knee, denied. A rating higher than 10 percent for post-operative residuals of SFW, with scar, left knee, is denied. An initial evaluation not to exceed 10 percent for SFW-associated scar neuritis, femoral nerve, RLE, is granted, effective August 26, 2016, subject to the law and regulations governing the award of monetary benefits. An initial evaluation not to exceed 10 percent for SFW-associated scar neuritis, femoral nerve, LLE, is granted, effective August 26, 2016, subject to the law and regulations governing the award of monetary benefits. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs