Citation Nr: 18158733 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 11-33 819 DATE: December 17, 2018 ORDER Entitlement to a rating in excess of 10 percent for service-connected internal derangement of the right knee with degenerative changes and limitation of flexion (previously rated as internal derangement of the right knee) is denied. Entitlement to a rating in excess of 10 percent for service-connected internal derangement of the right knee with instability or subluxation is denied. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. The record does not reflect the Veteran’s right knee has flexion limited to 30 degrees or less, nor extension limited to 10 degrees or more, even when taking into account his complaints of pain. 2. The record does not reflect the Veteran’s right knee is manifested by moderate recurrent instability and/or lateral subluxation. 3. The Veteran was provided with a VA Form 21-8940 (Application for Increased Compensation Based upon Unemployability) in March 2015 but he did not submit a completed form although advised to do so, including in a September 2017 Board remand. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected for internal derangement of the right knee with degenerative changes and limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5261. 2. The criteria for a rating in excess of 10 percent for service-connected internal derangement of the right knee with instability or subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for assignment of a TDIU due to service-connected disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.158, 3.340, 4.16; Jernigan v. Shinseki, 25 Vet. App. 220 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1953 to September 1957. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board observes that while the Veteran only perfected a formal appeal on the right knee claims, the issue of entitlement to a TDIU is part of this appeal in accord with the holding of Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran provided testimony at a hearing before personnel at the RO in May 2014, and before the undersigned Veterans Law Judge in May 2016. Transcripts of both hearings are of record. In September 2017, the Board remanded this case for further development to include a new examination of the right knee, which was accomplished in May 2018. The case has now been returned to the Board for additional appellate consideration. As an additional matter, the Board notes that the September 2017 remand also directed that a Statement of the Case (SOC) be promulgated on the issues of service connection for bilateral shoulder disabilities, vision impairment, and bilateral foot fungus. See Manlincon v. West, 12 Vet. App. 238 (1998). The record reflects an SOC was promulgated on these issues in June 2018, and it appears the Veteran perfected an appeal by filing a timely Substantive Appeal later that same month. Nevertheless, at the present time, these issues have not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35. However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). No such action has been accomplished in this case, and the only issues discussed by the Veteran's accredited representative in an June 2018 written statement was the matter of increased ratings for the right knee. Increased Rating Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. More recently, the Court held that “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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In this case, the Board notes that the Veteran’s right knee has been manifested by complaints of pain throughout the pendency of this case. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board also notes that the Veteran’s right knee has been assigned separate ratings for the right knee based upon limitation of flexion (Diagnostic Code 5260) and recurrent instability (Diagnostic Code 5257) in accord with VAOPGCPRECs 23-97 and 9-8. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Further, the Board has considered whether additional separate rating(s) are warranted under other potentially applicable criteria for evaluating disabilities of the knee and leg. However, the required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis), 5258 (cartilage, dislocated, semilunar), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula, impairment of), and 5263 (genu recurvatum) are not applicable, as it appears the presence of ankylosis of the right knee, dislocation or removal of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum have not been demonstrated. 1. Entitlement to a rating in excess of 10 percent for internal derangement of the right knee with degenerative changes and limitation of flexion Diagnostic Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. In VAOPGCPREC 9-2004 VA's Office of General Counsel held that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. Therefore, the Board must also address whether a separate rating is warranted under Diagnostic Code 5261 for limitation of extension. Diagnostic Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. In this case, the Board must find the record does not reflect the Veteran’s right knee has flexion limited to 30 degrees or less, nor extension limited to 10 degrees or more, even when taking into account his complaints of pain. For example, a December 2006 VA examination found his right knee had flexion to 130 degrees with pain occurring at the end of motion. The examiner did indicate that the right knee was limited by an additional 10 degrees due to pain, weakness, lack of endurance, incoordination; which would indicate flexion was limited to 120 degrees. In addition, the right knee showed normal extension to zero degrees. A subsequent August 2011 VA examination showed the right knee had flexion limited to 110 degrees, and extension to zero degrees. There was no additional degree of limitation after repetitive motion testing. A May 2015 VA examination noted that the Veteran had flexion to 125 degrees, and extension to zero degrees. There was no change with repetitive motion testing. However, the examiner acknowledged that this examination supported the Veteran’s statements describing functional loss with repetitive use over time, it was indicated this would result in flexion limited to 120 degrees. There was no change in extension (zero degrees.). A January 2017 VA examination also found the right knee had flexion to 125 degrees and extension to zero degrees, with no change with repetitive motion testing. Pain was noted on flexion, but not extension. The examiner stated the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-up, and it was indicated there would be not additional limitation of motion in terms of degrees. The examiner further noted there was no evidence of pain on non-weight-bearing; and passive range of motion was the same as active with mild pain on right knee flexion. The most recent VA examination in May 2018 notes flexion of the right knee to 100 degrees on active motion, with extension to zero degrees. Pain was again noted on flexion, but not extension. In addition, right knee flexion was to 110 degrees on passive motion testing, with extension still to zero degrees. There was no change with repetitive motion testing. Further, there was no objective evidence of pain on non-weight bearing. The examiner stated the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-up. Although the examiner noted that factors such as pain would limit functional ability with repeated use over time, it was not stated it would result in limitation to the extent necessary for a rating in excess of 10 percent based upon flexion, nor a compensable rating for extension. Nothing in the other evidence of record, to include the medical treatment records, demonstrates the Veteran has had flexion limited to 30 degrees or less during the pendency of this case, to include during flare-ups. As such, he does not warrant a rating in excess of 10 percent under Diagnostic Code 5260. Further, as detailed above, the record has generally indicated normal extension, with no pain noted on this aspect of range of motion testing. In other words, he does not have limitation of extension such that even a minimum compensable rating of 10 percent would be warranted under Diagnostic Code 5261. In making the above determination, the Board was cognizant of the fact the record indicates the Veteran has used medication to treat his right knee, to include for pain. The Court has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). However, there is no competent medical opinion, or other competent evidence, which demonstrates the Veteran would have limitation of the right knee that would warrant higher rating(s) in this case but for the use of such medication. This is of particular significance as the range of motion results noted above generally would not even warrant the current 10 percent rating for limitation of flexion under Diagnostic Code 5260; and extension has generally been found to be normal, with no evidence of pain on examination. In view of the foregoing, the Board finds the Veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent based upon limitation of flexion of the right knee to include as a “staged” rating(s); nor does he warrant a separate compensable rating for limitation of extension of the right knee. 2. Entitlement to a rating in excess of 10 percent for service-connected internal derangement of the right knee with instability or subluxation Under Diagnostic Code 5257, slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. It is also noted that the term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." The Board notes that in evaluating a claim based upon knee instability, the Court recently indicated in English v. Wilkie, No. 17-2083 (U.S. Vet. App. Nov. 1, 2018) that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned; and that when weighing evidence to determine whether there is lateral instability, VA cannot find objective medical evidence is automatically more probative than lay evidence. In this case, the Veteran has reported his right knee giving way, and he has been noted as regularly using a cane and knee brace. As such, there is competent lay evidence of at least slight knee instability consistent with the current 10 percent rating under Diagnostic Code 5257. However, as detailed below, the record does not demonstrate his instability is more than small in size, degree, or amount; i.e., it is not of medium quantity, quality, or extent. Stated another way, the competent evidence of record, to include the Veteran’s own lay testimony, does not demonstrate moderate lateral instability and/or recurrent subluxation. The December 2006 VA examination noted there was evidence of guarding of movement of the right knee, and acknowledged his complaints of giving way by noting “locking,” of the right knee. However, there was no recurrent subluxation. Moreover, medial and lateral collateral ligaments testing of the right knee was within normal limits. The August 2011 VA examination found no evidence of instability, subluxation or guarding of movement of the right knee. In addition, the medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability test were all within normal limits for the right knee. The May 2015 VA examination found there was evidence of 1+ (0-5 millimeters) on medial instability testing, which indicates slight instability as there appears to be higher possible results of 2+ and 3+ (i.e., it is the minimum amount of instability indicated by such testing). Further, the anterior instability, posterior instability, and lateral instability testing were all found to be normal. In addition, it was stated there was no history of recurrent subluxation of the right knee. Similarly, the most recent VA examination of the right knee in May 2018 found anterior instability was 1+ (0-5 millimeters); while posterior instability, medial instability, and lateral instability testing were all normal. There was again no history of recurrent subluxation of the right knee. In view of the foregoing, and a thorough review of the other evidence of record including the Veteran’s lay evidence and the medical treatment records on file, the Board finds the Veteran does not meet or nearly approximate the criteria for a rating in excess of 10 percent under Diagnostic code 5257. The Board notes that it does not find the results of the competent medical examinations noted above are automatically more probative than the Veteran’s account of his right knee giving way. However, the fact that testing conducted as part of these examinations show little or no evidence of instability is probative evidence that such instability is no more than slight; and that he does not have moderate recurrent instability. Further, the Veteran does not contend, nor does the record otherwise reflect, he would have moderate instability and/or subluxation but for the use of medication. See Jones, supra. Therefore, a rating in excess of 10 percent is not warranted, to include as a “staged” rating(s). 3. Entitlement to a TDIU due to service-connected disability It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). In this case, however, the record reflects the Veteran was sent correspondence in March 2015 that was not substantially completed and he was again notified of the need do so in the September 2017 Board remand. To date, he has not done so. The Board observes that the VA Form 21-8940 requests information regarding the Veteran's occupational and educational history, which is necessary to determine entitlement to TDIU. This information can be critical to resolution of this case. Moreover, the Court has indicated that failure to provide this Form or its equivalent information can constitute abandonment of the TDIU claim. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012); see also 38 C.F.R. § 3.158. Consequently, the claim of entitlement to a TDIU must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel