Citation Nr: 18142121 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 09-12 142 DATE: October 12, 2018 ORDER A disability rating in excess of 20 percent for the service-connected right knee disability is denied. REMAND Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT The service-connected right knee disability has been manifested by malunion of the tibia and fibula with moderate knee impairment. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1976 to November 1976, from March 1977 to April 1978, and from February 1984 to October 1986. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2010, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. 38 C.F.R. § 20.700(e) (2017). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103 (2017). A transcript of the hearing is associated with the claims file. In September 2010 and February 2015, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the 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 it 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 limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to a disability rating in excess of 20 percent for a right knee disability. In a January 1987 rating decision, VA granted service connection for a right knee disability (excision tibial ossicle, right knee; patellar malalignment, right knee; patellar tendinitis, right knee) and assigned an initial disability rating of 10 percent under Diagnostic Code 5259, effective October 31, 1986. The current appeal arises from an increased rating claim received at VA on May 19, 2005. In a November 2005 rating decision, an increased rating of 20 percent was assigned under Diagnostic Code 5262, effective May 19, 2005. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee is assigned a rating of 30 percent if severe; a rating of 20 percent if moderate; and a rating of 10 percent if slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a rating of 10 percent is assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, limited flexion merits a rating of 30 percent where flexion is limited to 15 degrees; 20 percent where flexion is limited to 30 degrees; 10 percent where flexion is limited to 45 degrees; and 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limited extension merits a rating of 50 percent where extension is limited to 45 degrees; 40 percent where extension is limited to 30 degrees; 30 percent where extension is limited to 20 degrees; 20 percent where extension is limited to 15 degrees; 10 percent where extension is limited to 10 degrees; and 0 percent where flexion is limited to5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5262, nonunion of the tibia and fibula is assigned a rating of 40 percent with loose motion requiring a brace; malunion of the tibia and fibula is assigned a rating of 30 percent with marked knee or ankle disability; a rating of 20 percent with moderate knee or ankle disability; and a rating of 10 percent with slight knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) is assigned a rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5263. The report of a June 2005 VA Examination reveals the Veteran’s complaint that he can only stand for 15 to 30 minutes and can walk less than 1 mile. He reported constant symptoms with no flares. The Veteran’s gait was notable for poor propulsion. On objective examination, there was no evidence of abnormal weight bearing. With active motion against gravity, range of motion was from 0 to 80 degrees; pain began at 70 degrees; pain ended at 80 degrees; passive range of motion was from 0 to 90 degrees; pain began at 70 degrees; pain ended at 90 degrees. There was no additional limitation of motion on repetitive use. The examiner noted no bumps consistent with Osgood-Schlatter’s disease. There was no crepitation; no mass behind the knee; no clicks or snaps; no grinding; and no meniscus abnormality. X-rays revealed evidence of a tear of the medial meniscus and degenerative changes (Record 06/23/2005). A September 14, 2006, VA Primary Care Note reveals complaint of bilateral knee pain, locking, and giving way. The examiner noted that plain films appear to show only minor degenerative joint disease changes (Record 07/16/2007 at 1). An October 25, 2006, Orthopedic Surgery Outpatient Note reveals the Veteran was observed with an unusual gait and allegedly in pain. He described bilateral popping and giving way, as well as a grinding sensation in both knees. No locking was recollected. Objective examination revealed significant pain behavior on range of motion of the knees, and on attempt to get on and off the examining couch; however, there was no objective evidence of internal derangement. X-rays were interpreted as normal (Record 07/16/2007 at 10). An October 27, 2006, Physical Medicine Rehabilitation Note reveals complaint of bilateral knee pain and intermittent swelling. The Veteran denied swelling at the time of the examination. Objective examination revealed no effusion of the knees. The Veteran refused range of motion examination. Strength testing was notable for poor effort. Gait was slow, but normal pattern (Record 11/16/2011 at 66). A November 29, 2006, Orthopedic Surgery Outpatient Note reveals a review of an MRI showing a lateral meniscal cyst associated with a horizontal tear of the lateral meniscus (Record 07/16/2007 at 11). An October 26, 2007, Staff Physician Note reveals distal knee strength within normal limits (Record 10/01/2009 at 13). The report of an October 2010 VA Examination reveals the Veteran’s complaint that he was unable to stand for more than a few minutes and unable to walk more than a few yards. The report contains 2 separate summaries of reported symptoms (the Veteran’s complaints). However these lists are not consistent. Reports consistently include deformity, giving way, instability, pain, stiffness, weakness, and decreased speed of joint motion, with no flares of joint disease. However the first list is positive for incoordination, episodes of dislocation or subluxation, and locking episodes. The second list is negative for these symptoms. Objective findings include crepitus, effusion, tenderness, weakness, guarding of movement, clicks and snaps, grinding, and subpatellar tenderness. Findings are negative for Osgood-Schlatter bumps, mass behind knee, instability, and meniscus abnormality. There was no evidence of abnormal weight bearing. X-rays from October 2010 were negative. Right knee flexion was measured from 0 to 45 degrees. Right knee extension was normal. There was objective evidence of pain following repetitive motion. However, there was no additional limitation after three repetitions of range of motion. There was no ankylosis. The examiner diagnosed degenerative joint disease. Occupational effects included decreased mobility, decreased manual dexterity, problems with lifting and carrying, lack of stamina, weakness, fatigue, decreased strength, and pain. The effect on chores, exercise, sports, recreation, and driving was severe. The effect on shopping, traveling, bathing, dressing, and toileting was moderate. There was no effect on feeding or grooming. A spine examination conducted concurrently included findings of 4 out of 5 motor strength on knee flexion and extension; normal muscle tone; and atrophy (Record 10/07/2010). The report of a March 2016 VA Examination reveals complaint of knee pain with difficulty standing more than 10 minutes. The Veteran could walk approximately 40 or 50 yards. He did not report symptom flares. Range of motion was from 0 to 75 degrees on flexion and 75 to 0 degrees on extension. Pain was noted on examination, but did not result in functional loss. There was evidence of pain with weightbearing. There was no additional functional loss or range of motion after three repetitions. Pain, weakness, fatigability and/or incoordination did not significantly limit functional ability with repeated use over a period of time. Findings for the nonservice-connected left knee were the same as for the right knee. Muscle strength was 5 out of 5 on flexion and extension. There was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation or lateral instability. There was no instability on testing. Anterior stability, posterior stability, medial stability, and lateral stability were all normal. While a meniscal condition was noted, with surgery in 1985, the residuals consisted of pain and limitation of motion (Record 03/08/2016). A June 16, 2017, VA Orthopedic Clinic Note reveals findings of no instability to the knees and range of motion from 0 to 90 degrees. The examiner stated that the pain reported by the Veteran on examination was out of proportion to the examination findings (Record 03/12/2018 at 32). An August 2, 2017, VA Orthopedic Clinic Note reveals range of motion of the right knee from 0 to 120 degrees. X-rays showed mild joint space narrowing with normal appearance of soft tissues (Record 03/12/2018 at 22). A December 27, 2017, VA Orthopedic Clinic Note reveals the Veteran’s complaint of bilateral knee pain, and his report that he uses a walker and cane. The examiner noted that his X-rays were relatively normal. The Veteran reported extreme pain with gentle range of motion of either knee. The examiner stated that this was out of proportion to the examination findings. There was no instability (Record 03/12/2018 at 2). After a review of all of the evidence, the Board finds that the criteria for a disability rating in excess of 20 percent for the service-connected right knee disability have not been met. Regarding Diagnostic Code 5257, although the Veteran has reported subjective instability, Diagnostic Code 5257 refers specifically to lateral instability of the knee joint. Lateral instability is a specific type of instability that is demonstrated by clinical testing of varus and valgus stress. In the Veteran’s case, testing for lateral instability and subluxation has been conducted repeatedly, and has consistently been normal. Accordingly, a rating under Diagnostic Code 5257 is not appropriate. While the Veteran has a history of meniscal pathology, a rating under Diagnostic Code 5258 would not provide a higher rating than currently assigned, as a rating of 20 percent is the maximum rating available under that code. Such a rating contemplates dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 also rates on the basis of meniscal pathology, but provides only a maximum rating of 10 percent. Ratings on the basis of limitation of motion would not provide a higher rating in this case. The Veteran’s range of flexion has never been less than the 45-degree criterion for a compensable rating; and extension has always been normal. There are no findings consistent with ankylosis (Diagnostic Code 5256) or genu recurvatum (Diagnostic Code 5263). Accordingly, those codes are not appropriate. The Veteran is currently rated under Diagnostic Code 5262 on the basis of malunion of the tibia and fibula with moderate knee impairment. Such a rating is not specific to type of symptomatology, but encompasses all symptomatology that contributes to disability. The designations of slight, moderate, and marked, are not defined in the rating schedule, but are general terms which encompass a broad array of symptoms. Accordingly, notwithstanding the fact that none of the other diagnostic codes except Diagnostic Code 5258-9 provides the basis for a separate rating, the Board finds that such separate ratings would necessarily constitute pyramiding in the Veteran’s case, as Diagnostic Code 5262 encompasses all of his knee symptomatology, including meniscal symptomatology, locking, constant pain, weakness, giving way, and limited motion, with resulting limitation on squatting, rising, standing, walking, running, climbing and descending stairs, lifting and carrying. While the Veteran has argued that a 40 percent rating is warranted under Diagnostic Code 5262 on the basis that he has been prescribed a brace, but no longer wears it because it was making his knee worse, the Board finds that there are no findings consistent with loose motion of the tibia and fibula. This is a conjunctive requirement for a 40 percent rating. Moreover, the Board also finds that there is not marked knee disability to support a 30 percent rating. The term “marked” is not defined under the rating schedule. The adjective “marked” is defined as strikingly noticeable or conspicuous. Synonyms include striking, outstanding, obvious, and prominent. See “marked,” The American Heritage Dict. (Dictionary.com http://dictionary.reference.com/browse/marked). In the Veteran’s case, the primary symptomatology reported by the Veteran is pain. However, several examiners have found this pain to be out of proportion to findings shown on examination. Moreover, pain itself does not satisfy the criteria for any rating higher than the minimum compensable rating. The Veteran’s range of motion has been moderately limited at times, but at other times, such as in the August 2, 2017, evaluation, it has been only mildly limited. Overall, the Board finds that limitation of motion, including due to painful motion, has been no more than moderate. Moreover, the Board reiterates that the findings for lateral stability and subluxation have been entirely normal. In sum, the Veteran’s overall knee impairment has been moderate, but has not been marked. The Veteran has made no specific allegations as to the inadequacy of any medical examination. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995); Correia v. McDonald, 28 Vet. App. 158 (2016). In sum, the Board finds that the Veteran’s disability has not been productive of marked impairment. Accordingly, the Board concludes that a disability rating in excess of 20 percent is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (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). REASONS FOR REMAND Entitlement to TDIU is remanded. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has six service-connected disabilities. In addition to his right knee, which is rated at 20 percent, a low back disability is also rated at 20 percent. Tinnitus and dermatitis are each rated at 10 percent. The remaining disabilities are noncompensable. The combined disability rating is 40 percent since May 19, 2005, and 50 percent since June 7, 2007. Thus, the criterion of a single 60 percent rating, or a combined rating of 70 percent with at least a single disability rated at 40 percent or more, are not met. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director of the Compensation Service for extraschedular consideration. The applicable laws and regulations provide only for assignment in the first instance of an extra-schedular rating by the individuals specified in 38 C.F.R.§ 4.16(b). See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Turning to the question of whether referral for consideration of an extraschedular TDIU is warranted, the Board notes that the Veteran is considered disabled under the criteria of the Social Security Administration, and that this determination is at least in part due to service-connected disabilities. These include his service-connected thoracolumbar spine disability and arthritis, which is applicable to the service-connected right knee disability. The Veteran has reported that his physician has instructed that he should no longer lift or sit for any extended period (Record 10/26/2007). The Board also acknowledges the Veteran’s argument that his medications taken for service-connected disabilities make him unable to work. See Mingo v. Derwinski, 2 Vet. App. 51 (1992) (in adjudicating a TDIU claim, there must be an assessment of the side effects of the medications taken for a service-connected disability). The Veteran reported that his pain medications make it impossible for him to drive or to be coherent at most times. While not determinative, the Board finds that there is significant evidence that is at least suggestive of the Veteran’s inability to secure or follow a substantially gainful occupation due to service-connected disabilities, and that the criteria for referral of the claim to the Director of the Compensation and Pension Service have been met. Accordingly, this matter is REMANDED for the following action: 1. Submit the matter of entitlement to TDIU on an extraschedular basis to the Director of VA’s Compensation and Pension Service for consideration of the matter in the first instance. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp