Citation Nr: 18145747 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-35 083 DATE: October 30, 2018 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for left lower extremity neuropathy is reopened. New and material evidence has been presented, and the claim of entitlement to service connection for right lower extremity neuropathy is reopened Service connection for left lower extremity neuropathy is granted. Service connection for right lower extremity neuropathy is granted. Service connection for a lumbar spine disability is granted Prior to October 31, 2016, a rating in excess of those assigned for a right knee disability is denied. From December 1, 2017, a 60 percent rating for a right knee disability is granted, subject to the laws and regulations governing the award of monetary payments. A total disability rating based on individual unemployability is granted, subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to dependency for dependence for the Veteran’s children is remanded. FINDINGS OF FACT 1. In a February 2009 rating decision, the Veteran’s service connection claims for bilateral lower extremity neuropathy were denied. 2. The evidence received since the February 2009 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claims for service connection for bilateral lower extremity neuropathy, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims. 3. It is as likely as not that the Veteran’s bilateral lower extremity neuropathy is due to his active service. 4. It is as likely as not that the Veteran’s lumbar spine disability is due to his active service. 5. Prior to October 31, 2016, the Veteran’s right knee disability was not shown to result in ankylosis; slight recurrent subluxation or lateral instability; removed symptomatic meniscus; flexion functionally limited to 45 degrees or less; extension functionally limited to 10 degrees or more; an impairment of the tibia and fibula; or genu recurvatum. 6. From December 1, 2017, the Veteran’s total right knee replacement surgery has resulted in chronic residuals consisting of severe painful motion. 7. The evidence of record makes it at least as likely as not that the Veteran’s service connected disabilities are of sufficient severity to preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The February 2009 rating decision that denied service connection for left and right lower extremity neuropathy is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has been received since the February 2009 rating decision that is sufficient to reopen the Veteran’s claim of entitlement to service connection for bilateral lower extremity neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for left lower extremity neuropathy have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for right lower extremity neuropathy have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 5. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 6. Prior to October 31, 2016, the criteria for a rating in excess of those assigned for the Veteran’s right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5055, 5256-63. 7. From December 1, 2017, the criteria for a 60 percent rating for the Veteran’s right knee disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5055, 5256-63. 8. The criteria for a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Marine Corps from February 1983 to February 1992, to include service in Southwest Asia. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2018. A transcript of that hearing is of record. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran’s service connection claims for bilateral lower extremity neuropathy were previously denied by a February 2009 rating decision. The Veteran has sought to reopen his previously denied claims in June 2016, which were denied by an August 2016 rating decision. While the Veteran filed a notice of disagreement in September 2016, the RO has not yet issued a statement of the case. However, given probative medical evidence that was generated as part of the ongoing appeal, and erring on the side of administrative efficiency, the Board is taking jurisdiction over the appeal of these two issues, reopening the previously denied claims, and granting service connection for bilateral lower extremity neuropathy. In February 2010, the Veteran filed his service connection claim for a lumbar spine disorder, which was denied by an June 2011 rating decision. In June 2016, the Veteran filed his service connection claims for bilateral lower extremity neuropathy, which were denied by an August 2016 rating decision. He asserts that his lumbar spine disability and bilateral lower extremity neuropathy are due to his active service. Specifically, he asserts that his lumbar spine disability and bilateral lower extremity neuropathy are due to chemical exposures during his service in Southwest Asia. In October 2018, a VA oncologist reviewed the Veteran’s claims file. The VA oncologist opined that Veteran’s lumbar spine disability, which was due to a tumor, as likely as not began during his active service. The VA oncologist also opined that the Veteran’s bilateral lower extremity neuropathy was at least as likely as not to be related to the Veteran’s chemical exposure during his active service. The opinions of the VA oncologist are given great probative weight. The VA oncologist reviewed objective medical evidence, referred to objective medical studies, and opined that the Veteran’s lumbar spine disability as likely as not began during his active service. The VA oncologist also opined that the Veteran’s bilateral lower extremity neuropathy was as likely as not due to the Veteran’s active service. Although another medical opinion has reached the opposite conclusion regarding the Veteran’s lumbar spine disability and bilateral lower extremity neuropathy, the evidence for and against the Veteran’s claims are in at least relative equipoise. Accordingly, the Veteran’s claims for service connection for a lumbar spine disability and bilateral lower extremity neuropathy are granted. Increased Rating The Veteran was granted service connection for his right knee disability by an April 2011 rating decision and initially rated at 10 percent under Diagnostic Code 5010 effective June 20, 2007. The Veteran filed an increased rating claim for his right knee disability in July 2013. A March 2014 rating decision granted a separate rating of 20 percent under Diagnostic Code 5258 effective March 5, 2012. An August 2014 rating decision granted a temporary 100 percent rating from January 26, 2011, to April 30, 2011, for surgical or other treatment requiring convalescence. Afterwards, the Veteran’s right knee ratings were continued. A September 2016 rating decision proposed to discontinue the Veteran’s right knee rating under Diagnostic Code 5010, which was effectuated by an August 2017 rating decision effective November 1, 2017, which did not change his combined evaluation or monetary benefits. A February 2018 rating decision continued the Veteran’s right knee disability. A September 2018 rating decision granted the Veteran a temporary 100 percent rating from October 31, 2016, to November 30, 2017, as the Veteran underwent total right knee replacement surgery. He was assigned a 30 percent rating under Diagnostic Code 5055 effective December 1, 2017. The Veteran asserts that he is entitled to higher ratings for his right knee disability. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5010 evaluates arthritis due to trauma. A 10 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5055 provides for a 100 percent rating for one year following implantation of prosthesis (e.g. a total knee replacement). Afterwards, a 30 percent rating is assigned for chronic residuals consisting of intermediate degrees of residual weakness, pain or limitation of motion in the affected extremity. A 60 percent rating, the maximum rating, is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, which is synonymous with the meniscus. A 10 percent rating is assigned for removal of the meniscus. A 20 percent rating is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5260 evaluates limitation of knee flexion. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees or extension limited to 15 degrees. A 30 percent rating is assigned for either flexion limited to 15 degrees or extension limited to 20 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. The Veteran’s treatment records do not show findings consistent with higher ratings for his right knee disability. In October 2013, the Veteran was afforded a VA examination. He reported having knee pain and swelling. He reported having flare-ups two to three times per month with significant pain and swelling. On examination, he demonstrated right knee flexion to 100 degrees with pain and normal extension to 0 degrees. Repetitive use testing did not result in any additional limitation of motion. The examiner indicated that the Veteran had less movement than normal, pain on movement, and disturbance of locomotion. The examiner indicated that the Veteran had tenderness or pain to palpation. The Veteran retained normal 5/5 strength with no muscle atrophy. The examiner reported that the Veteran had undergone a meniscectomy in 1993 and 1998 with residual signs that included pain, swelling, and decreased range of motion. In August 2017, the Veteran was afforded a VA examination. He reported having undergone a total knee replacement. He reported that his knee continued to have pain and swelling. On examination, he demonstrated right knee flexion to 110 degrees with pain and normal extension to 0 degrees. The examiner indicated that there was no evidence of pain with weightbearing or evidence of localized tenderness or pain on palpation of the joint. Repetitive use testing resulted in no additional functional loss or range of motion. The examiner indicted indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during repetitive use or during flare-ups. The examiner indicated that the Veteran’s right knee disability resulted in pain. The Veteran retained normal 5/5 strength with no muscle atrophy. The examiner indicated that the Veteran had a right meniscal tear that resulted in frequent episodes of joint pain and effusion. The examiner reported that the Veteran underwent right total knee replacement in October 2016 and he had residual pain. In September 2018, the Veteran was afforded a VA examination. He reported constant right knee pain and reported that any activity made his knee pain worse. He reported having flare-up that resulted in throbbing and aching. On examination, he demonstrated right knee flexion to 90 degrees with pain and normal extension to 0 degrees. The examiner indicated that there was evidence of pain with weightbearing and but there was no evidence of localized tenderness or pain on palpation over the patellar tendon. Repetitive use testing resulted in no additional functional loss or range of motion. The Veteran retained normal 5/5 strength with no muscle atrophy. The examiner indicated that the Veteran had a right meniscal tear that resulted in frequent episodes of joint pain. The examiner reported that the Veteran underwent right total knee replacement in October 2016. From July 25, 2013, through October 31, 2016, the Veteran was assigned a 10 percent under Diagnostic Code 5258 for his right knee meniscal condition, which resulted in frequent episodes of pain, the maximum rating available for a meniscal condition. Turning to limitation of flexion, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5261 have not been met. The Veteran demonstrated right knee flexion, at worse, limited to 100 degrees even when considering pain, which exceeds the 60 degree limitation, equivalent to a noncompensable rating. As such, the Veteran is not found to meet even the criteria for a noncompensable rating under Diagnostic Code 5260, which requires flexion to be limited to 60 degrees. Accordingly, a separate rating under Diagnostic Code 5260 is not warranted. Turning to limitation of extension, the Board finds that the criteria to assign a separate compensable rating under Diagnostic Code 5261 have not been met. The Veteran consistently demonstrated normal extension in his right knee to 0 degrees, which exceeds the 5 degree limitation, equivalent to a noncompensable rating. Accordingly, the Veteran is not found to meet the criteria for a compensable rating under Diagnostic Code 5261, which requires extension to be functionally limited to 10 degrees. 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 from July 25, 2013, through October 31, 2016. See also DeLuca, 8 Vet. App. 202. 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. Here, the October 2013 VA examiner concluded that the Veteran had pain and swelling, but even then the Veteran retained flexion and extension well in excess of the loss of motion required for compensable ratings. Thus, greater ratings for limitations of flexion and extension are not warranted under DeLuca. While the Veteran has been shown to experience knee pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran retained flexion and extension in excess of compensable ratings. As such, there is no basis for compensable ratings under Diagnostic Codes 5260 or 5261 for his right knee disability. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. However, here, the Veteran was assigned a compensable rating based on his right knee meniscal condition and the pain it caused. As such, 4.59 does not mandate a separate rating for pain. From October 31, 2016, to November 30, 2017, the Veteran was assigned a temporary 100 percent rating for convalescence after undergoing total right knee replacement surgery. From December 1, 2017, the Veteran was assigned a 30 percent rating under Diagnostic Code 5055 for an intermediate degree of residual weakness, pain, or limitation of motion from total right knee replacement surgery. From December 1, 2017, the evidence of record establishes that the Veteran’s total right knee replacement surgery results in chronic residuals consisting of severe painful motion. At the September 2018 VA examination, the Veteran reported constant pain and that any activity made his pain worse. The examiner indicated that the Veteran had pain with range of motion. As such, from December 1, 2017, the Veteran meets the criteria for a 60 percent rating. Accordingly, prior to October 31, 2016, a schedular rating in excess of those assigned for a right knee disability is not warranted, and his claim is denied. However, from December 1, 2017, a rating of 60 percent is warranted for the Veteran’s right knee disability, and his claim is granted. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. In this case, the Veteran submitted his claim for a TDIU in June 2017, which was denied by a February 2018 rating decision. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has met the schedular criteria for a TDIU as of December 1, 2017, as he had a combined disability rating of in excess of 70 percent with his depressive disorder rated at 70 percent disabling and his right knee disability now rated at 60 percent. According to his unemployability form he last worked May 1, 2018. In August 2018, a VA examiner reviewed the Veteran’s claims file, noting that the Veteran’s symptoms from his depressive disorder included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including in a work or a work like setting. The examiner indicated that the Veteran’s depressive disorder resulted in difficulty remembering instructions and details of work assignments. The examiner indicated that the Veteran’s sleep was so disrupted that he was usually fatigued at work, making concentration and focus on work assignments difficult. The examiner indicated that the Veteran was so depressed that he had difficulty sustaining energy and motivation to complete assignments at work. The examiner indicated that the Veteran had irritability that interfered significantly with the ability to work. The evidence of record establishes that the Veteran’s service connected depressive disorder, when combined with the physical limitations presented by his service connected right knee disability, his back disability and his bilateral peripheral neuropathy in the lower extremities, the Veteran is clearly prevented from engaging in substantial gainful activity. Accordingly, the Veteran is not able to obtain and sustain substantial gainful employment on account of his service connected disabilities. As such, the Board concludes that the evidence for and against TDIU is at least in relative equipoise, and given this conclusion, the Board will resolve any reasonable doubt in the Veteran’s behalf, and hold that TDIU is warranted. As such, the Veteran’s claim is granted. REASONS FOR REMAND The Veteran asserts that he is entitled to additional dependency benefits for his children. At the January 2018 Board hearing, he testified that his children were held back a grade and graduated from high school a year later and that he was entitled to an additional year of benefits. A dependent included children who are unmarried and either under the age of 18, between the ages of 18 and 23 and attending school full-time, or who were seriously disabled before the age of 18. As the Veteran has asserted that his children remained in school an additional year, the claim must be remanded in order for the Veteran to submit his children’s academic records showing they were full-time students. The matter is REMANDED for the following action: Request the Veteran submit academic records showing his children were full-time students after they attained the age of 18. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel