Citation Nr: 1804590 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-24 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee with subluxation and instability, prior to December 30, 2010, from February 1, 2011 through July 27, 2011, and from September 1, 2011. 2. Entitlement to an initial rating higher than 20 percent for degenerative joint disease of the right knee with limitation of flexion. 3. Entitlement to an initial rating higher than 10 percent for degenerative joint disease of the right knee with limitation of extension. 4. Entitlement to a total disability evaluation for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and S.J. ATTORNEY FOR THE BOARD A. Budd, Counsel INTRODUCTION The Veteran served on active duty from June 2004 to December 2005, from June 2007 to September 2007, and from February 2009 to April 2010, with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. A July 2011 rating decision granted service connection for right knee torn meniscus with degenerative joint disease, and assigned a rating of 10 percent effective April 30, 2010; a temporary 100 percent rating effective December 30, 2010; and a 10 percent rating from February 1, 2011. A November 2011 rating decision assigned a temporary rating of 100 percent effective July 28, 2011, and a 10 percent rating from September 1, 2011. The 10 percent rating was continued in a January 2012 rating, as well as the October 2012 rating decision on appeal. An October 2014 rating decision assigned separate ratings of 10 percent for limitation of extension of the right knee and 10 percent for limitation of flexion of the right knee, both effective August 7, 2014. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2015. A transcript of that hearing is of record. These matters were remanded by the Board in September 2015. A January 2016 rating decision increased the rating assigned to limitation of flexion to 20 percent, effective August 7, 2014. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. During the periods from April 30, 2010 through December 29, 2010, from February 1, 2011 through July 27, 2011, and from September 1, 2011 through August 6, 2014, the Veteran's right knee degenerative joint disease with subluxation and instability was manifested by no more than slight instability. 2. From August 7, 2014, the Veteran's right knee degenerative joint disease with subluxation and instability has been manifested by moderate instability. 3. The Veteran's degenerative joint disease of the right knee with limitation of flexion is manifested by, at worst, flexion limited to 25 degrees. 4. The Veteran's degenerative joint disease of the right knee with limitation of extension is manifested by, at worst, extension limited to 10 degrees. CONCLUSIONS OF LAW 1. For the rating periods on appeal from April 30, 2010 through December 29, 2010, from February 1, 2011 through July 27, 2011, and from September 1, 2011 through August 6, 2014, the criteria for a rating higher than 10 percent, for service-connected right knee degenerative joint disease with subluxation and instability, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5257 (2017). 2. The criteria for a rating of 20 percent but no higher for service-connected right knee degenerative joint disease with subluxation and instability from August 7, 2014, to the present have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, DC 5257 (2017). 3. The criteria for a rating higher than 20 percent for service-connected degenerative joint disease of the right knee with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, DC 5260 (2017). 4. The criteria for a rating higher than 10 percent for service-connected degenerative joint disease of the right knee with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, DC 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). To the extent that VA examination findings do not meet with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), a new examination would not cure deficiencies of an examination conducted in the past. Further, in this regard, active range of motion testing produces range of motion test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Similarly, testing on weight-bearing would generally produce more restrictive results than testing done without weight-bearing. Therefore, in the case at hand, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing on weight-bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Although the Board recognizes that the Veteran has not had stability testing during her VA examinations, the Veteran has cooperated with five examinations, none of which has been able to perform stability testing. The record does not indicate that stability testing will be able to be performed if a sixth examination is ordered. Therefore, the Board will rate the Veteran's disability based upon the record. Similarly, the record does not reflect that a sixth examination would be more likely to capture the Veteran's range of motion during a flare-up than the five examinations that have already been performed. For these reasons, the Board will make a decision based upon the medical evidence of record rather than remanding the claim for another examination that would result in additional delay with no possible benefit flowing to the Veteran. Soyini v. Principi, 1 Vet. App. 540, 546 (1991). The Veteran contends that she should receive higher disability ratings because of the pain and instability of her knees. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257. Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under DC 5260 or 5261, a separate evaluation could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5260, a 10 percent rating is in order if flexion of the knee is limited to 45 degrees. A 20 percent rating is in order if flexion of the knee is limited to 30 degrees. A 30 percent rating is in order if flexion of the knee is limited to 15 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is in order if extension of the knee is limited to 10 degrees. A 20 percent rating is in order if extension is limited to 15 degrees. A 30 percent rating is in order if extension is limited to 20 degrees. A 40 percent rating is in in order if extension is limited to 30 degrees, and a 50 percent rating is warranted if extension is limited to 45 degrees. Normal range of motion of the knee is 0-degree extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is in order if there is slight recurrent subluxation or lateral instability. A 20 percent rating is in order if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is in order if there is severe recurrent subluxation or lateral instability. The Board notes that the rating schedule does not define the terms "slight," "moderate," or "severe." Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. Right Knee Instability The first question before the Board is whether the instability of the Veteran's right knee disability meets the criteria for a rating in excess of 10 percent at any time during the rating periods on appeal from April 30, 2010 through December 29, 2011, from February 1, 2011 through July 27, 2011, and/or from September 1, 2011. The Board will not discuss the periods from December 30, 2010 through January 31, 2011 and from July 28, 2011 through August 30, 2011, because the Veteran was assigned a temporary total (100 percent) evaluation for convenlence pursuant to 38 C.F.R. § 4.30 during those periods, and a higher rating is not available. In a December 2010 treatment note, the Veteran reported that her knee locks up, as well as having seizing episodes that occur at least once a week such that she has to kick her knee to move it. She had stable varus and valgus stress testing at 0, 5, and 30 degrees. She had flexion to about 120 degrees, but it was painful. Later that month, her range of motion was described as 5 degrees of hyperflexion to 140 degrees of flexion. A February 2011 treatment note measured range of motion of 0 degrees flexion and 120 degrees of extension, which is likely an error, and was intended to read 0 degrees (or full) extension and 120 degrees of flexion. A March 2011 VA examination recorded that the Veteran needed to limit lifting over 30 pounds, sitting over 1-2 hours, standing over 30 minutes, and walking over 30 minutes, but stated that there were no effects on her usual occupation. The examiner noted that the Veteran's occupational history was a student studying to be a lab technician. Her range of motion was measured as flexion to 120 degrees, and full extension, with no additional limitation after three repetitions. The examiner did not perform stability testing due to the Veteran's post-operative status, referencing her arthroscopic surgery on the right knee, but also found no sign of instability earlier in the examination. A December 2011 treatment note discussed ongoing pain and a feeling like her knee will give away, although she had not had any true locking or catching sensations. Her range of motion was measured as 0 to 130 degrees, with pain from 90 degrees. She had marked tenderness to palpation. Her knee was stable to both varus and valgus stress at both zero and 30 degrees. A VA examination in August 2012 noted that the Veteran reported pain, numbness, locking, clicking, and difficulty driving. Her range of motion was recorded as 115 degrees of flexion with painful motion from 90 degrees, and full extension without evidence of painful motion. There was no additional limitation after repetitions. The examiner was unable to test instability. The Veteran reported regular use of a brace. The functional impact of the right knee disability on the Veteran's ability to work was described as restriction to work that did not require use of the right leg for repetitive motion or prolonged driving. A February 2013 exam found flexion to 115 degrees, with pain at 90, and full extension without objective evidence of pain and no additional limitation after repetitions. The examiner was unable to test stability, but noted regular use of a brace. In May 2013, the Veteran was described as having mild sensitivity to touch over the patella, and active range of motion from 0 to 135 degrees, although the last 10 degrees of full extension caused discomfort. Her ligaments were stable to varus and valgus stress as well as anterior and posterior drawer tests, and she had a negative McMurray test. An August 2014 VA examination noted that the Veteran walks with a cane, and reports that she has to curtail her activities because it is very painful to walk. She was unable to drive her car because it required use of her right leg. The Veteran described daily pain, and her knee locking up 2-3 times per week. She reported that she wears a brace, and uses a cane. Her knee was aggravated by steps, driving, sitting, or standing 1-2 hours. She had flare-ups 5-6 times per week, which she treated with ice and heat. Her range of motion was recorded as flexion to 45 degrees with painful motion at 45 degrees, and extension to 10 degrees with painful motion at 10 degrees. The Veteran was unable to perform three repetitions due to pain, and the examiner was unable to test instability, but noted evidence of slight recurrent patellar subluxation/dislocation. Veteran was still in the National Guard on a profile, and was working on a medical discharge. The Veteran was unable to bend or kneel, jump, stand for more than two hours, sit more than 1-2 hours, or run. The Veteran's April 2015 hearing testimony was that her knee will lock up sometimes such that she cannot move it at all until she maneuvers it, presumably with her hands. She stated that even when her knee is not locked, she needs to use a brace or a cane. She testified that she is unable to lift and carry, and that her daily activities are impossible without the use of an aid, like the brace or cane. She described pain when stepping down, twisting, pivoting, or bending the knee to grab something on the floor or high up, as well as sitting down and standing up. She reported she cannot hold her knee in a bent position for long enough to tie her shoes. She described getting in and out of a car as well as pushing down on the gas or brake pedals while driving as painful and challenging. The Veteran's friend S.J. testified that the Veteran had to stop and rest twice during the process of going through security and checking in with the administration office for the hearing, and that she never uses the stairs. Another VA examination was conducted in January 2016. The Veteran's knee pain increased with walking, sitting, standing, and walking up or down stairs. She reported that she even had pain lying in bed. The Veteran used a cane because she felt that her knee was unstable and wanted to give out at times. She reported that prolonged walking and standing increased her knee pain and limited her range of motion, but she did not know how much. Her range of motion was recorded as flexion to 25 degrees, and extension to 5 degrees. Pain began at approximately 10 degrees and continued up to 25 degrees, at which point it was too painful to continue. She had pain with weight-bearing. The examiner was unable to perform range of motion testing during a flare-up, and thus was unable to describe limitation of range of motion during flare-ups without resorting to speculation. The examiner noted that pain interferes with prolonged sitting, meaning more than 30 minutes, at which point she has to try to stand to relieve the increased pain, and also noted that prolonged standing also increased pain to the right knee. The examiner was unable to perform joint stability testing because the Veteran had extreme pain when the examiner touched her knee, but that the testing the examiner was able to perform indicated slight laxity or instability. The examiner was unable to fully determine the severity of the instability. The Veteran occasionally used a brace and regularly used a cane. The first question before the Board is the appropriate rating for the instability of her right knee. Although the stability testing has not been possible during VA examinations, the Veteran's VA treatment notes have consistently indicated objective testing showed normal stability, as recently as May 2013. Because there was no indication of objective instability, a rating in excess of 10 percent for slight instability is not warranted prior to the August 2014 examination. However, the August 2014 examination indicates a worsening of the Veteran's right knee disability. At this point, the Veteran reported use of a cane, and stated that her knee locked up 2-3 times per week. Although the Veteran had reported incidents of locking in the past, this was the first record of a significant increase in the frequency of locking episodes, and instability such that she needed to use a cane. DC 5258 is not applicable because it relates to dislocated semilunar cartilage, and the Veteran does not have dislocated semilunar cartilage. However, DC 5258 indicates that frequent episodes of "locking," pain, and effusion into the joint corresponds to a 20 percent rating. In comparison, the Board finds that in this case, the use of a cane as well as the frequency of episodes of locking are more appropriately described as moderate, warranting a 20 percent rating under DC 5257, which corresponds with the 20 percent rating assigned for frequent locking under DC 5258. Although the August 2014 examination did not contain objective testing of instability, the partial testing in the January 2016 examination did indicate slight instability, and the Board will allow the Veteran the benefit of the doubt in assigning a 20 percent rating. However, the record does not support a 30 percent rating for severe instability. Although the Board has allowed the Veteran the benefit of the doubt, it may not speculate on what stability testing might have shown if it were performed. Therefore, a rating of 20 percent and no higher for instability will be assigned effective August 7, 2014, the date of the August 2014 examination. Right Knee Limitation of Motion The next question before the Board is whether it is appropriate to assign a rating higher than 20 percent for limitation of flexion of the right knee. The facts of the record, which are described above, indicate that the Veteran's flexion is limited, at worst, to 25 degrees of flexion, which corresponds to the 20 percent rating assigned. Although the Board recognizes that there are no range of motion measurements performed during a flare-up, the Board must make a decision based upon the evidence of record, not speculation of what limitation might be during flare-ups. Similarly, although the Veteran was unable to perform repetitive range of motion testing due to pain in August 2014, the record does not reflect that she is unable to move her knee at all during flare-ups, so assigning a rating as if the Veteran has zero degrees of flexion would not be appropriate. The Veteran has described episodes in which her knee locks up such that she cannot move it, but has also stated that she is able to move her knee again after manipulating it. Therefore, the functional impairment of these episodes is not comparable to ankylosis, when a knee is essentially permanently fixed at a particular range of motion. The level of impairment described in the Veteran's hearing testimony, such as being unable to bend down to tie her shoes, is consistent with the limitation, at worst, to 25 degrees of flexion shown by the record. Additionally, the Board notes that the Veteran has also been service-connected and assigned a 20 percent rating for reflex sympathetic dystrophy (RSD) of the right knee, which contemplates pain in her right knee. Assigning a higher rating in this decision solely because of knee pain, beyond that which is reflected as limitation of motion, would be impermissible pyramiding. 38 C.F.R. § 4.14. Therefore, assignment of a rating higher than 20 percent is not appropriate. Additionally, the record does not show limitation of flexion to a compensable level (meaning 60 degrees) prior to August 7, 2014. For this reason, the Board will not assign a separate rating for limitation of flexion prior to that date. Similarly, the record does not reflect extension limited to more than 10 degrees, which corresponds to the 10 percent rating assigned. The arguments regarding limitation of motion during flare-ups and the impermissibility of pyramiding by assigning a higher rating due to pain apply to limitation of extension as well. The evidence of record does not indicate that it would be appropriate to assign a rating higher than 10 percent for limitation of extension, or that it would be appropriate to assign a separate rating for limitation of extension prior to August 7, 2014. Therefore, the claim must be denied. Neither the Veteran nor her representative has raised any other issue, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 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). The issue of entitlement to a TDIU has been remanded for additional development, specifically for an opinion of the functional impact of the Veteran's other service-connected disabilities. Therefore, this additional development will not impact the Board's decision herein regarding the severity of the Veteran's right knee disability, and does not require remand under Brambley v. Principi, 17 Vet. App. 20 (2003). ORDER 1. Entitlement to a staged initial rating higher than 10 percent for service-connected right knee degenerative joint disease with subluxation and instability, for the rating periods on appeal from April 30, 2010 through December 29, 2010, from February 1, 2011 through July 27, 2011, and from September 1, 2011 through August 6, 2014, is denied. 2. Entitlement to a staged initial rating of 20 percent and no higher for service-connected right knee degenerative joint disease with subluxation and instability from August 7, 2014 is granted. 3. Entitlement to an initial rating higher than 20 percent for service-connected degenerative joint disease of the right knee with limitation of flexion is denied. 4. Entitlement to an initial rating higher than 10 percent for service-connected degenerative joint disease of the right knee with limitation of extension is denied. REMAND In situations where the issue of entitlement to a TDIU arises in connection with an appeal for an increased rating, the Board is not precluded from issuing a final decision on the increased rating claim and remanding the TDIU-rating issue to the RO. Brambley v. Principi, 17 Vet. App. 20 (2003). It is within the Secretary's discretion to bifurcate the claim. See Locklear v. Shinseki, 24 Vet. App. 311 (2011). In this case, the Veteran's representative has argued in a December 2017 brief that the VA medical opinion is inadequate as to TDIU because it does not consider the Veteran's other service-connected disabilities. Considering that the argument rests upon an opinion regarding disabilities other than the right knee, the Board finds that bifurcation of the higher right knee initial ratings and TDIU issues is appropriate. Upon remand, a VA examination should be obtained that considers the functional impact of all of her service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate VA clinician. After reviewing the record and performing any necessary testing, the clinician is asked to assess and describe the functional impact of the Veteran's service-connected disabilities, considered in combination, on specific occupational activity, to include prolonged sitting, standing, walking, concentrating etc. . The examiner is to document any reported education and work experience. The examiner is asked to comment on the ability of the Veteran to function in an occupational environment with the functional impairment due to service-connected disabilities. The examiner is not to consider the effects of the Veteran's age or non-service-connected disabilities. A complete rationale must be provided for the opinion(s) expressed. The Veteran is currently service connected for primary insomnia, mild obstructive lung disease, reflex sympathetic dystrophy, degenerative joint disease of the right knee with limitation of flexion, instability, and limitation of extension, chronic headaches, and healed right knee arthroscopic scars. The examiner is asked to discuss the functional impairment due to all of these disabilities, as well as the impact of any medication prescribed to treat these disabilities, including narcotic hydrocodone, which is referenced in the January 2016 VA medical opinion. 2. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs