Citation Nr: 1804552	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  17-25 902	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a right foot disability, to include as due to a right knee disability.  

2.  Entitlement to an evaluation in excess of 10 percent for a right knee disability, status-post meniscectomy.

3.  Entitlement to a compensable evaluation for a right knee scar, status-post meniscectomy.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Ciardiello, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from August 1992 to January 1993 and from March 1998 to June 1998. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified before the undersigned Veterans Law Judge in a hearing 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 issues of entitlement to service connection for a right foot disability and a higher rating for a right knee disability and right knee scar are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's right knee disability is productive of at least slight instability.



CONCLUSION OF LAW

The criteria for a separate rating of at least 10 percent for right knee instability have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (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 asserts that a higher rating is warranted for his service-connected right knee disability, which is currently rated as 10 percent disabling under DC 5259 for removal of cartilage, and also rated as noncompensable under DC 7805 for a scar associated with a right knee meniscectomy.  

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.

At the September 2017 hearing, the Veteran reported instability and buckling of the right knee, which causes his right knee to give out up to four times per week.  See September 2017 Hearing Transcript at 12.  Resolving all reasonable doubt in the Veteran's favor, the Board finds the Veteran has instability of the right knee that is at least slight in severity.  Accordingly, a rating of at least 10 percent for right knee instability is warranted under DC 5257.  

The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is not currently before the Board, as the Veteran testified that he is not claiming that benefit at this time.  See September 2017 Hearing Transcript at 4. 


ORDER

Subject to the law and regulations governing payment of monetary benefits, a rating of 10 percent for instability of the right knee is granted.


REMAND

I. Right Knee

The Board finds that the issue of entitlement to an increased rating for a right knee disability must be remanded to provide the Veteran a new VA examination. 

Since the Veteran's last VA examination, 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 Veteran's previous right knee examinations 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 light of the forgoing, the Board finds that the Veteran should be afforded a new VA knee examination that complies with the holdings of Correia and Sharp.

II. Right Foot

The Board finds that remand is required to provide the Veteran with a VA examination that addresses all of the Veteran's theories of entitlement.  Specifically, the Veteran asserts that his current right foot injury, diagnosed as right foot capsulitis, is secondary to his service-connected right knee disability.  See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); see also November 2013 VA Examination.  To date, that Veteran has not been provided a VA medical opinion addressing the issue of secondary causation.  This must be accomplished on remand. 

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 and foot disabilities.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3. 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.

4. Then schedule the Veteran for a VA foot examination to determine the nature and etiology of his current right foot disability.  The entire claims file and a copy of this REMAND should be made available to and reviewed by the examiner.  The examiner is asked to respond to the following inquiries:

(a)  Provide a diagnosis for all right foot disabilities present.  

(b)  For all right foot disabilities present, opine as to whether it is at least as likely as not related to any event or injury in-service. 

(c)  For all right foot disabilities present, opine as to whether it is at least as likely as not caused or aggravated by any of his other service-connected disabilities (to include the right knee disabilities).

All appropriate testing should be undertaken in connection with the examination and a complete rationale with reference to supporting facts from the file for the opinion expressed should be set forth in a legible report.

5. Then readjudicate the appeal.  

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).

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