Citation Nr: 18145857 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-11 338 DATE: October 30, 2018 ORDER Entitlement to an initial disability rating higher than 10 percent, prior to July 28, 2017, for service-connected left knee degenerative joint disease is denied. Entitlement to an initial disability rating higher than 30 percent, beginning July 28, 2017, for service-connected left knee degenerative joint disease is denied. Referral for extra-schedular rating consideration under 38 C.F.R. § 3.321(b) for service-connected left knee degenerative joint disease is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 24, 2014 is remanded. FINDINGS OF FACT 1. During the appeal period, the Veteran’s left knee degenerative joint disease has manifested through painful range of motion limited, at worst, to left knee flexion to 40 degrees and extension to 0 degrees, with stiffness, excess fatigability, and disturbance of locomotion, but no ankylosis, no instability of the joint, no patellar subluxation or dislocation, no tibial or fibular impairments, no genu recurvatum, no crepitus, no meniscal dislocation or tears, and no “locking” or effusion. 2. During the appeal period, the Veteran’s left knee degenerative joint disease has not shown any symptomology not contemplated by the applicable schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating higher than 10 percent for service-connected left knee degenerative joint disease, prior to July 28, 2017, have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a disability rating higher than 30 percent for service-connected left knee degenerative joint disease, beginning July 28, 2017, have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1 -4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for referral for extra-schedular rating consideration for service-connected left knee degenerative joint disease have not been meet. 38 C.F.R. § 3.321(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1989 to July 1989 and from January 1991 to June 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision dated April 2013. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in November 2013 in connection with separate issues then on appeal. A transcript of that hearing is associated with the claims file. In a June 2017 decision, the Board denied service connection for asthma and remanded the claims for a higher rating for the left knee condition and for a TDIU. While the case was in remand status, a June 2018 rating decision increased the rating for left knee degenerative joint disease to 30 percent, effective July 28, 2017. However, the Veteran is assumed to be seeking the highest rating available. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the Board has recharacterized the Veteran’s request for a higher rating as seeking a rating higher than 10 percent prior to July 28, 2017, and higher than 30 percent thereafter. In the same June 2018 rating decision, the RO also granted the Veteran a TDIU, effective April 24, 2014. However, as discussed in the REMAND section below, the Veteran filed a formal claim for a TDIU in May 2012, and the RO did not properly address whether TDIU was warranted prior to April 2014. In addition, the Veteran’s representative requested referral for extra-schedular consideration under 38 C.F.R. § 3.321(b). See October 2018 brief. Accordingly, the issue of whether extra-schedular referral is warranted is before the Board. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board has thoroughly reviewed all evidence in the claims file. Consistent with the law, the analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran must not assume the Board has overlooked evidence that is not explicitly discussed herein. In addition, pertinent regulations for consideration were provided in the June 2014 statement of the case and June 2018 supplemental statement of the case and are not repeated here in full. Neither the Veteran nor his representative raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board”). Also, neither has raised any concerns about the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist or Bryant hearing deficiency argument). Thus, the Board need not discuss any potential issues in this regard. Increased Ratings The RO granted service connection for left knee degenerative joint disease with a 10 percent disability rating from December 8, 2010. During the pendency of this appeal, the RO increased the rating to 30 percent from July 28, 2017. The Veteran seeks higher initial ratings for both periods. Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA regulations also instruct that evaluation of a service-connected disability involving the musculoskeletal and joints requires adequate consideration of functional loss due factors such as pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Similarly, the provisions of 38 C.F.R. § 4.45 state the factors of disability of the joints reside in reductions of their normal excursion of movements in different planes, such as due to pain on movement, weakened movement, excess fatigability, and incoordination. Although pain alone does not equate with functional loss, pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion may cause functional loss if it affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); accord Saunders v. Wilkie, 886 F.3d 1356, 1367 (Fed. Cir. 2018) (“to establish a disability, the veteran’s pain must amount to a functional impairment”). Further, 38 C.F.R. § 4.59 recognizes painful motion of musculoskeletal conditions as productive of disability, such that a veteran is entitled to the minimum compensable evaluation available under the applicable Diagnostic Code whenever the evidence of record reveals that the joint or periarticular region at issue is actually painful, unstable, or malaligned. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). The Veteran underwent a VA examination for his left knee condition in March 2013. The examination, conducted during a flare-up, showed left knee flexion limited to 60 degrees and extension to 0 degrees. Repetitive-use testing revealed no additional limitations in range of motion. The examiner found additional symptoms of excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, standing and/or weight bearing. The examiner found no instability of the joint after testing (Lachman test, posterior drawer test, and valgus/varus pressure tests), no evidence or history of patellar subluxation or dislocation, tibial or fibular impairments, genu recurvatum, meniscal dislocation or tears, or “locking” or effusion. The Veteran underwent another VA examination for his left knee condition in November 2013. The examination showed left knee flexion limited to 40 degrees and extension to 0 degrees. Repetitive-use testing revealed no additional limitations in range of motion. The examiner found additional symptoms of excess fatigability, pain on movement, and disturbance of locomotion. The examiner found no ankylosis, no instability of the joint after testing, no evidence or history of patellar subluxation or dislocation, tibial or fibular impairments, genu recurvatum, crepitus, meniscal dislocation or tears, no “locking” or effusion, and no muscle atrophy, with normal muscle strength with flexion, and active movement against some resistance on extension. The Veteran underwent another VA examination for his left knee condition in July 2017. He reported increased stiffness, constant throbbing pain, and more difficulty and increased pain with bending his knee, but denied having any flare-ups. He also reported his knee condition interfered with walking, kneeling, climbing stairs, and getting in and out of a car. Initial range of motion testing showed flexion and extension both limited to 5 degrees, and repetitive use testing was not performed. However, the examiner noted the Veteran made “suboptimal effort” in performing the range of motion testing, and that there was no objective evidence of pain on passive range of motion testing. The examiner found no ankylosis, no evidence or history of patellar subluxation or dislocation, tibial or fibular impairments, genu recurvatum, meniscal dislocation or tears, and no “locking” or effusion. The examiner noted the Veteran used a cane to assist with balance and locomotion. The examiner opined the Veteran’s condition did not preclude him from performing sedentary work during a normal 8-hour workday. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Board finds the July 2017 VA examination offers no probative value in favor of the Veteran’s claim due to his noted suboptimal effort performing range of motion testing, which rendered the results not credible. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Veteran’s VA treatment records generally show sporadic complaints of chronic left knee pain, with no indication of any knee-related symptomology during the appeal period that was worse than or inconsistent with that shown during the VA examinations. See, generally, VA treatment records dated May 2013, January 2014, June 2015, July 2016, October 2016, January 2017, November 2017, February 2018, June 2018. Likewise, the August 2018 private treatment records submitted by the Veteran do not show any knee-related symptomology during the appeal period that was worse than or inconsistent with that shown during the VA examinations. He submitted a report of an MRI done in August 2018, which showed the meniscus and ligaments were all intact, and there was some chondromalacia, among other things. 1. Prior to July 28, 2017 The Board finds that prior to July 28, 2017, the Veteran did not meet the criteria for a disability rating higher than 10 percent for his left knee degenerative joint disease. The evidence shows that prior to the November 2013 VA examination, the Veteran’s left knee degenerative joint disease manifested itself as no worse than left knee flexion limited to 60 degrees and extension to 0 degrees, with additional symptoms of excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight bearing, resulting in the inability to perform certain normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, namely walking, climbing, and standing. The Board finds the Veteran’s disability picture for his left knee degenerative joint disease most nearly approximated the criteria for the 10 percent rating the RO assigned pursuant to 38 C.F.R. § 4.59 based on functional loss due to painful motion. See April 2013 rating decision. The evidence shows that starting with the November 2013 VA examination, the Veteran’s left knee degenerative joint disease manifested itself through painful range of motion with flexion to 40 degrees at worst and extension to 0 degrees at worst, with symptoms of excess fatigability and disturbance of locomotion, resulting in the inability to perform certain normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, namely walking, kneeling, climbing stairs, standing for extended periods, and getting in and out of a car. The Board finds the Veteran’s disability picture for his left knee degenerative joint disease most nearly approximated the criteria for the 10 percent rating the RO assigned based on limitation of flexion of 31 to 45 degrees. See June 2014 statement of the case; 38 C.F.R. § 4.71a, DC 5260. The Veteran is not entitled to any higher or additional ratings for his left knee degenerative joint disease prior to July 28, 2017, because the Veteran has not been shown to have had or approximated any of the following diagnoses, conditions, or symptoms that would warrant a higher or additional rating: ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, removed semilunar cartilage, limitation of leg flexion to 30 degrees or less, limitation of leg extension to 10 degrees or less, any malunion or nonunion of his tibia and fibula, or genu recurvatum. See 38 C.F.R. § 4.71a, DCs 5256 – 5263. 2. Beginning July 28, 2017 The Board finds the Veteran is not entitled to any higher or additional ratings for his left knee degenerative joint disease than the 30 percent the RO assigned under DC 5260 for limitation of flexion beginning July 28, 2017. The Veteran has not been shown to have had or approximated during the appeal period any of the following diagnoses, conditions, or symptoms that would warrant a higher or additional rating: ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint, removed semilunar cartilage, limitation of leg extension to 10 degrees or less, any malunion or nonunion of his tibia and fibula, or genu recurvatum. See 38 C.F.R. § 4.71a, DCs 5256 – 5263. In reaching the above determinations, the Board considered lay statements submitted by the Veteran and others. As an initial matter, the Board finds the Veteran’s statements regarding the severity of his left knee condition not credible. The Veteran has been repeatedly noted by VA examiners to exaggerate the severity of his symptoms, including through suboptimal effort in range of motion and other testing. See September 2011 VA examination (noting Veteran “made no effort on diagnostic test for asthma”); August 2014 VA examinations (noting Veteran’s “symptoms are disproportionate to his physical findings” on his shoulder, neck, and back examinations); August 2017 VA examination (noting “suboptimal effort” in knee range of motion testing). In addition, the Board finds the lay statements in the record provide no specific evidence of symptoms or functional loss that would support any higher or additional ratings for his left knee degenerative joint disease for any portion of the appeal period. See August 2011 Veteran’s wife’s lay statement (stating Veteran has walking and balance problems due to his ankle and knee conditions); August 2011 Veteran’s sister’s lay statement (stating she has witnessed Veteran’s problems with his knee and ankle, including “sometimes” losing his balance and being in pain); February 2012 lay statement by T.L.F. (stating she has witnessed Veteran being in pain daily and walking with a visible limp). The Board finds these vague statements have little probative value as to the severity of the Veteran’s left knee condition, and are greatly outweighed by the more specific and detailed medical findings from the VA examinations. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). Moreover, most of the lay statements associated with the claims file relate to the Veteran’s service-connected left ankle condition, and are notably silent regarding his left knee degenerative joint disease. See, e.g., August 2011 Veteran lay statement; February 2012 Veteran lay statements; February 2012 co-worker lay statement; July 2012 Veteran and wife lay statements; June 2013 Veteran lay statement. As the evidence is not in at least approximate balance that the Veteran is entitled to any higher or additional ratings for his left knee degenerative joint disease for any portion of the appeal period, the benefit-of-the-doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Extra-schedular Consideration The Veteran’s representative asserts referral for an extra-schedular rating is warranted based on the “exceptional and unusual symptoms and severity” of the Veteran’s left knee degenerative joint disease. See October 2018 brief. The threshold determination for referral for extra-schedular consideration is whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board finds the symptomatology and impairments caused by the Veteran’s service-connected left knee degenerative joint disease are specifically contemplated by the schedular rating criteria, and no referral for extra-schedular consideration is required. He has not raised any complaints that his condition is unusual in any way, nor is this indicated by the medical evidence. The assertion that he has “exceptional and unusual symptoms and severity” amounts to nothing more than hyperbole unsupported by objective medical evidence or competent and credible lay evidence. Instead, the weight of the evidence establishes the Veteran’s disability picture is adequately contemplated by the applicable schedular rating criteria, which have been discussed above. Referral to the Director of Compensation Service is denied. REMAND In the June 2018 rating decision granting a TDIU, the RO assigned an effective date of April 24, 2014, which is the date the RO determined the Veteran met the schedular requirements in 38 C.F.R. § 4.16(a). The RO stated this was a full grant of the benefit sought on appeal. That is, however, incorrect, as the Veteran filed his formal claim for a TDIU in May 2012. The June 2018 rating decision did not address whether referral for extra-schedular consideration was warranted under 38 C.F.R. § 4.16(b) for the period between the date he filed his TDIU claim and the effective date of his schedular TDIU, nor did the RO include the issue of entitlement prior to 2014 as remaining on appeal in the 2018 SSOC. Accordingly, this matter is REMANDED for the following action: Consider whether referral for an extra-schedular TDIU is necessary. If not, issue a SSOC addressing entitlement to TDIU prior to April 2014. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Leamon, Associate Counsel