Citation Nr: 1805091 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-27 496A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for the Veteran's right knee disability. 2. Entitlement to an extraschedular disability rating for a right knee disability. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, J.P., S.R. ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to August 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issues of entitlement to disability ratings in excess of 10 percent for limitation of flexion and a meniscal condition were previously before the Board, and, in July 2016, the Board remanded those matters for further development. Further development in substantial compliance with the Board's remand instructions has been completed. The issues of entitlement to an extraschedular disability rating for a right knee disability and entitlement to 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 RO reduced the disability rating for the Veteran's service-connected right knee limitation from flexion from 20 percent to 10 percent effective November 1, 2011, but the evidence does not show an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 2. The Veteran's flexion has not been shown to be functionally limited to 15 degrees or less during the course of the appeal and his extension has not been shown to be functionally limited to more than 30 degrees (which was only shown at the July 2013 VA examination) and was not shown to be functionally limited to 10 degrees or more prior to July 2013. 3. The Veteran wears a right knee brace and has voiced complaints of instability, but physical testing has not found any clinical evidence of instability or subluxation. 4. The Veteran underwent a meniscus surgery on his right knee, but it is not shown to have resulted in such separate symptomatology as to warrant an additional separate rating. CONCLUSIONS OF LAW 1. The reduction in the disability rating assigned for limitation of flexion of the right knee from 20 percent to 10 percent effective November 1, 2011 is void ab initio; restoration of the 20 percent disability rating is warranted as of such date. 38 U.S.C. § 5112 (2012); 38 C.F.R. §§ 3.105(e), 3.343, 3.344 (2017). 2. Criteria for an increased rating for the Veteran's right knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5256-5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran testified at a personal hearing before the Board, and a transcript of the hearing is of record. The Veteran was also provided with several VA examinations and neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). This matter was previously remanded in order to associate additional treatment records with the claims file and to provide the Veteran with an additional VA examination. Additional treatment records were associated with the claims file, and a VA examination was provided in substantial compliance with the Board's previous remand instructions. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Right Knee In March 2010, the Veteran filed a claim seeking an increased rating for his service connected right knee disability, and, in May 2011, the RO denied an increased claim based on instability and proposed a reduction in disability rating from 20 percent to 10 percent for the rating based on limited flexion. In September 2011, the RO reduced the disability rating to 10 percent. The Veteran appealed. During the pendency of the appeal, the Veteran was assigned a separate compensable disability rating of 30 percent for limitation of extension. The Veteran's disability rating based on the criteria for limitation of flexion (Diagnostic Code 5260), rated at 20 percent at the time his claim was received, was reduced to 10 percent in May 2011. However, while the procedural requirements for reduction were followed, the May 2011 rating decision explaind that the rating was reduced to 10 percent because the Veteran's disability rating was not adequately supported by evidence, rather than a finding that the Veteran's disability had improved. As such, the rating reduction is void ab initio, and the Veteran's disability rating based on the criteria for limitation for flexion (Diagnostic Code 5260) is at a minimum 20 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In December 2010, the Veteran underwent a VA examination at which he was noted to take Vicoden as needed for his right knee disability. He was noted to have had a partial meniscectomy and an ACL reconstruction. X-rays showed degenerative arthritis in the joint. The Veteran reported that the condition had worsened since onset, and that he was using a brace and icing with good results. There was no instability found and the Veteran demonstrated range of motion from 0-130 degrees with no additional pain or limitation of motion following repetitive motion testing. In April 2011, the Veteran was noted to have tenderness and swelling in his right knee. In July 2011 the Veteran underwent a second VA examination, reporting that his right knee pain had increased since the previous examination. Locking, instability, effusion, and subluxation were not found. The Veteran was noted to experience pain, weakness, and stiffness, and he reported experiencing flare-ups after too much walking weekly. The examiner found no meniscus abnormality and no instability. The Veteran demonstrated range of motion from 0-115 degrees. Repetitive motion increased pain, but did not decrease the range of motion. X-rays showed advanced arthritis. In August 2011, the Veteran was seen in the VA orthopedic department with severe knee pain, especially ambulating up and down stairs. It was noted that he weighed 355 pounds and he was advised that he needed to lose 50 pounds before he could be considered for a total knee replacement surgery. The Veteran's range of motion was from 5-115 degrees, with mild effusion, crepitus, mild laxity and mild varus instability. In February 2012, the Veteran reported having been told that he needed a total knee replacement surgery. In July 2012, it was felt that the Veteran was too heavy and at too high of a risk for infection to be a candidate for a total knee replacement surgery at that time. In his October 2012 substantive appeal, the Veteran asserted that he was unable to stand or walk for more than 20-30 minute before his knee was painful and swollen. He reported receiving cortizone shots every three months. In July 2013, the Veteran underwent a third VA examination at which he reported experiencing flare-ups when standing more than 30 minutes. On range of motion testing, the Veteran demonstrated 100 degrees of flexion, although there was no objective evidence of painful motion on flexion, and extension was limited to 20 degrees, and became painful at 25 degrees. On repetitive motion testing the Veteran demonstrated 110 degrees of flexion, and extension remained limited to 20 degrees. The Veteran had functional limitation from weakened movement, pain, and swelling. He demonstrated 5/5 strength and stability testing was normal with Lachman's test, posterior drawer, and to varus and valgus pressure. There was no evidence of subluxation. The Veteran was noted to have undergone a menisectomy and he had a meniscal tear with locking, joint pain and effusion. The residuals were described as locking, and catching with occasional giving way. At his Board hearing in May 2016, the Veteran testified that his knee would pop out without warning and he added that his right knee had worsened significantly since he filed his claim. He asserted that his knee was constantly painful and he added that the cortisone shots he received every three months did not last as long as it had previously. The Veteran underwent a VA examination in January 2017 at which he reported experiencing right knee pain of 5-8/10 depending on how far removed from his knee injections he is. The Veteran demonstrated range of motion from 5-110 and was able to complete repetitive motion testing without additional loss of motion. No instability was detected on clinical testing, and no subluxation was reported. The Veteran was noted to have had a menisectomy and currently experienced locking, effusion and pain. The Veteran's knee disabilities are evaluated pursuant to the diagnostic codes applicable to degenerative arthritis, the knee, and the leg; which are Diagnostic Codes 5003, 5256-5263. See 38 C.F.R. § 4.71a. The Board notes that Diagnostic Codes 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula) and 5263 (genu recurvatum) are not raised by the record, because, the Veteran has not been diagnosed with or claimed to have ankylosis, an impairment of the tibia or fibula, or genu recurvatum. Additionally, Diagnostic Code 5003 (arthritis) is not raised by the record either, because the Veteran has already been granted two separate disability ratings based on limitation of flexion and extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5262, 5263. With these Diagnostic Codes excluded, the Board will first address whether the Veteran is entitled to a greater rating based on the Diagnostic Codes applicable to limitation of motion of the right knee. Separate evaluations may be assigned for limitation of flexion and extension of the same joint. VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran's right knee is currently rated at 30 percent for limitation of extension since July 13, 2013, at 20 percent from August 1, 2007 to November 1, 2011 and then at 20 percent thereafter for limitation of flexion (based on the restoration of the reduced rating), and at 10 percent under DC 5257. Turning first to Diagnostic Code 5260, the Veteran has demonstrated forward flexion to at least 100 degrees every time range of motion has been tested during the course of his appeal. As such, he does not approach the criteria for a rating in excess of 20 percent at any time. Under DC 5261, the Veteran has shown limitation of extension during the course of the appeal. However, with the exception of the 2013 VA examination, extension was limited to no more than 5 degrees at any point, which would warrant the assignment of a noncompensable rating. At the 2013 examination, extension was limited to 20 degrees which formed the basis for a 30 percent rating, but the Veteran has not come close to replicating such limitation of extension since that time. As such, the 2013 examination represents the first occasion that the criteria for a separate rating based on limitation of extension was met, and therefore a separate compensable rating for extension is not warranted prior to that time. As such, the Board does not find that a higher rating is warranted based on either Diagnostic Code 5260 or 5261. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran has consistently complained of pain in his right knee, and the Veteran does receive periodic injections in his right knee and he does experience frequent flare-ups. For this reason, the Board is maintaining the high rating for limitation of extension, despite findings that suggest greater extension. Nevertheless, on range of motion testing, the Veteran has consistently been able to complete repetitive motion testing with no additional limitation of motion. As such, the Board does not find that the Veteran's range of motion is so functionally limited so as to warrant a higher rating than is already assigned based on either flexion or extension. Turning to Diagnostic Code 5257, the Veteran has been assigned a 10 percent rating based on instability. To this end, the Veteran has been prescribed a knee brace. At his hearing, he referenced his right knee popping, and instability is noted in several VA treatment records. Nevertheless, clinical testing has consistently found no instability. Given the lack of clinical finding of instability, the Board does not believe that a rating in excess of 10 percent is warranted for instability. Additionally, subluxation has not been shown or alleged at anytime during the course of the appeal. The Board has also consierered a separate rating for impairment of the meniscus under either DC 5258 or DC 5259. DC 5259 contemplates symptomatic removal of semilunar cartilage (meniscus), was a maximum 10 percent rating. DC 5258 contemplates dislocated semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint, with a 20 percent rating being assigned when those symptoms are shown. However, the Board must consider whether the assignment of multiple ratings constitutes the rating of the same symptoms under different rating codes, which is precluded by VA regulations as pyramidding. See 38 C.F.R. § 4.14. It has been explained by VA's general counsel that Diagnostic Code 5259, dealing with the meniscus is considered to be a range of motion based Diagnostic Code and therefore it cannot be paired with a second range of motion based rating as that would be considered pyramiding. See VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998) (noting that DC 5259 requires consideration of sections 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion). Here, the Veteran already has been assigned two separate ratings based on limitation of motion. Moreover, to the extent that the Veteran's menisectomy caused problems with instability, the rating that was assigned under Diagnostic Code 5257 specifically noted that it was intended to address stability issues from the menisectomy. While a rating under 5259 requires frequent pain, the Veteran's right knee pain was fully taken into consideration in the assignment of the two ratings based on limitation of motion. That is, pain was acknowledged to be a significant cause of functional limitation in the Veteran's case. While a rating under DC 5259 requires the dislocated semilunar cartiledge to be symptomatic, here no symptoms have been identified as a result of the menisectomy, aside from those that had already been compensated, namely pain, weakness, lack of endurance, instability, and limitation of motion. As such, a separate rating under Diagnostic Codes 5258 and 5259 have not been met. ORDER The disability rating of 20 percent for limitation of flexion of the right knee is restored effective November 1, 2011. A disability rating in excess of 30 percent for limitation of extension of the right knee, to include a compensable rating earlier than July 2013, is denied. A disability rating in excess of 10 percent for instability of the right knee is denied. A disability rating in excess of 20 percent for limitation of flexion of the right knee is denied. A separate compensable rating for impairment of the meniscus is denied. REMAND Extraschedular The Veteran testified at a personal hearing in May 2016 that he began to gain weight as a result of his right knee disability. See Transcript. If obesity resulting from a service-connected disease or injury is found to produce impairment beyond that contemplated by the applicable provisions of VA's rating schedule, VA may consider an extraschedular rating. VAOPGCPREC 1-2017 (January 6, 2017). The Board finds that this is sufficient to trigger VA's duty to assist, and this matter should be remanded in order to provide the Veteran with a VA medical opinion to determine the etiology of his weight gain. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has also testified at a Board hearing that his knee disability had effectively caused marked interferrence with employment in that he had become unable to drive to fashion shows, or to do the work required of a photographer as his right knee disability precluded the necessary mobility. TDIU The issue of entitlement to TDIU has been raised by the record, because a January 2017 VA examination opined that the Veteran's right knee disability impaired his ability to maintain employment. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to an extraschedular disability rating. Brambley v. Principi, 17 Vet. App. 20 (2003). As such, the issue of entitlement to TDIU is remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain a VA medical opinion to answer the following question: Is it at least as likely as not (50 percent or greater) that the Veteran's service-connected knee disabilities caused him to become obese? Why or why not? 2. Refer the matter to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular rating for both the right knee and for extraschedular TDIU consideration. 3. Then, readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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.A. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs