Citation Nr: 1806676 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 07-11 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected chondromalacia patella of the right knee. 2. Entitlement to a disability rating in excess of 20 percent for service-connected chondromalacia patella of the left knee. 3. Entitlement to a disability rating in excess of 30 percent for service-connected left hallux valgus, flexion contracture involving the great toe's interphalangeal (IP) joint and degenerative changes. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to July 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2006 and August 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In September 2006, the RO denied an increased rating higher than 20 percent for left knee and right knee disabilities; denied increased rating higher than 30 percent for left hallux valgus condition. In August 2013, the RO denied TDIU. In May 2014, the Veteran testified at a Board hearing at the RO before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. In March 2016, the RO assigned a temporary evaluation of 100 percent for convalescence due to left foot surgery effective February 8, 2016; an evaluation of 30 percent disabling resumed from June 1, 2016. Thus, the increased rating claim for left hallux valgus remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board remanded the matter in February 2011, October 2014, and most recently in June 2016 for additional evidentiary development. Thereafter, the RO continued the denial of the claims as reflected in the September 2017 supplemental statement of the case (SSOC) and returned the matter to the Board for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's chondromalacia patella of the right knee was productive of no more than moderate lateral instability or recurrent subluxation. 2. Throughout the entire appeal period, the Veteran's chondromalacia patella of the left knee was productive of no more than moderate lateral instability or recurrent subluxation. 3. The Veteran's left hallux valgus, flexion contracture involving the great toe's IP joint and degenerative changes, does not result in actual loss of use of the foot. 4. The evidence fails to establish that the Veteran was precluded from engaging in substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for chondromalacia patella of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a rating in excess of 20 percent for chondromalacia patella of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for a rating in excess of 30 percent for left hallux valgus, flexion contracture involving the great toe's IP joint have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5284 (2017). 4. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran, nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Further, a review of the claims file shows that there has been substantial compliance with the Board's prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Under these circumstances, the Board concludes that appellate review may proceed without prejudice to the Veteran. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Knee Disability The Veteran is currently assigned a rating of 20 percent for chondromalacia patella of the right knee and left knee under Diagnostic Codes 5099-5257, indicating rating based on instability. He filed a claim for increased evaluation in March 2006. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved (here, Diagnostic Codes 5260 or 5261 for the knees). If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5257, a 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides that a 20 percent rating is warranted 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 5260, limitation of flexion of the leg at the knee is rated at 0 percent if limited to 60 degrees, at 10 percent if limited to 45 degrees, at 20 percent if limited to 30 degrees, and at 30 percent, which is the maximum evaluation available, if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg at the knee is rated at 0 percent if limited to 5 degrees, at 10 percent if limited to 10 degrees, 20 percent if limited to 15 degrees, at 30 percent if limited to 20 degrees, at 40 percent if limited to 30 degrees, and at 50 percent if extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. In addition, VA regulations provide that "pyramiding," or evaluation of the same disability under various diagnoses, is to be avoided. 38 C.F.R. § 4.14. VA has specifically found, however, that limitation of motion of the knee and instability of the knee are not duplicative or overlapping conditions, and that a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97 (July 1997). Separate ratings must be based on additional disability. An April 2013 VA examination report reflects that the Veteran demonstrated right knee flexion to 110 degrees, left knee flexion to 120 degrees, and extension to 0 degrees for each knee. There was no objective evidence of pain on movement. After repetitive range of motion testing, the examiner indicated there was less movement than normal and weakened movement. The Veteran reported that both knees are "weak" and that pain is aggravated with prolonged standing. Joint stability testing was performed with normal findings for each knee. There was no evidence of or history of recurrent subluxation/dislocation or effusion. There was no meniscal condition or history thereof. Imagining studies of the knees documented arthritis on both left and right knee. A December 2014 VA examination report reflects that the Veteran demonstrated right knee flexion to 115 degrees, left knee flexion to 120 degrees, and extension to 0 degrees. There was no evidence of pain on weight bearing, but pain was noted on examination that caused functional loss in flexion. There was no objective evidence of lateral instability or recurrent subluxation. An August 2017 VA examination report reflects he demonstrated bilateral knee flexion to 130 degrees and extension to 0 degrees. There was no objective evidence of pain on movement noted on examination. Even after multiple rounds of range of motion testing, there was no additional function loss or pain on movement. There was no evidence of joint instability or recurrent subluxation. Upon review of the evidence of record, the Board finds that the Veteran is adequately compensated by the assigned 20 percent evaluation based on instability, and higher ratings for his service-connected chondromalacia patella of the right knee and left knee are not warranted. Diagnostic Codes 5099-5257. There is simply no evidence of record indicating severe lateral instability or recurrent subluxation of the right knee or left knee throughout the entire rating period on appeal. Although the Veteran reported feeling "weak" in the knees, upon clinical evaluation in 2013, recurrent subluxation was not shown. Likewise, joint stability tests were normal in 2013, 2014, and 2017 VA examinations with findings of stable varus stress, negative Lachman test, and negative posterior drawer test. Moreover, at no point during the appeal period were there any objective medical findings of moderate instability or abnormal laxity. That is, there is not clinical evidence of instability in either knee and the 20 percent rating for instability was based on the Veteran's credible reports of instability. Therefore, the Board finds that the overall disability picture for the Veteran's right and left knee disabilities based on instability more closely approximates the criteria for a 20 percent under Diagnostic Code 5257, and a higher rating is not warranted. While the rating schedule under Diagnostic Code 5258 allows for higher scheduler ratings for semilunar cartilage dislocated, a separate 10 percent rating is not warranted in this case. The record does not show frequent joint "locking," pain, and effusion as required under Diagnostic Code 5258. The Veteran's knee disability was not productive of recurrent symptoms or presented any symptoms of locking or effusion to warrant a rating under Diagnostic Code 5258. In fact, VA examiners of 2013, 2014, and 2017 consistently found no locking, effusion, or any history of meniscectomy. Thus, the application of Diagnostic Code 5258 is not warranted. Likewise, Diagnostic Code 5259 does not apply as there is no evidence of removal of semilunar cartilage. Moreover, evaluating the Veteran's knee disabilities under Diagnostic Codes 5256, 5262 or 5263 is not applicable as there is no evidence of ankylosis, tibia and fibula impairment, specifically malunion or nonunion, or genu recurvatum at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Lastly, the Board finds that the evidence does not support separate ratings under Diagnostic Codes 5260 or 5261 based on limitation of motion. For the entire rating period on appeal, flexion ranged from 115 to 130 degrees, and extension was at 0 degrees (full extension), including after consideration of functional loss due to pain. The Veteran has not shown at any time to have limitation of flexion of the knee to 60 degrees or shown limitation of extension of the knees. Thus, a separate rating under Diagnostic Codes 5260 or 5261 is not supported. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). When viewed in conjunction with the medical evidence, the Veteran's complaints of pain do not establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Specifically, even when considering the effect of the Veteran's pain and other functional loss, he still demonstrated range of motion following repetitive use of flexion to well in excess of the degree required for a higher rating. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for increased rating in excess of 20 percent for chondromalacia patella of the right knee under Diagnostic Code 5257 and in excess of 20 percent for chondromalacia patella of the left knee under Diagnostic Code 5257. The benefit-of-the-doubt doctrine is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left Foot Disability The Veteran is currently assigned a rating of 30 percent for left hallux valgus, flexion contracture involving the great toe's IP joint and degenerative changes under Diagnostic Code 5284, which evaluates foot injuries. He filed a claim for increased evaluation in March 2006. By way of history, the Veteran was assigned a temporary 100 percent evaluation from September 7, 2007 with a 30 percent rating under Diagnostic Code 5284 that resumed as of December 1, 2007; a temporary total evaluation from November 2013 with 30 percent resumed as of March 1, 2014; a temporary total evaluation from September 5, 2014 with 30 percent resumed as of December 1, 2014; and most recently a temporary total evaluation from February 8, 2016, with a 30 percent rating that resumed as of June 1, 2016. Under Diagnostic Code 5284, which governs foot injuries, a 30 percent rating is warranted for "severe" foot injuries. A 40 percent rating could be assigned for loss of use of the foot, which is not demonstrated in this case. See 38 C.F.R. § 4.63. In this regard, the Board observes that except periods of temporary total evaluation, the Veteran has been in receipt of a 30 percent rating, the maximum available for "severe" foot injuries under Diagnostic Code 5284. To that end, absent evidence of a "loss of use of the foot" as required for a 40 percent rating, a higher rating is simply not warranted. At no point, during the entire appeal period, has the Veteran shown actual loss of use of his left foot. In fact, the record demonstrates an improvement where the April 2017 examiner found that "the veteran's [left foot] condition is described as moderate based on the fact that his functional impairment is such that he experiences moderate pain on weight bearing." Thus, the Board finds that the Veteran's symptomatology and impairment caused by his service-connected left foot disability is fully contemplated by the assigned maximum rating of 30 percent under the applicable Diagnostic Code, and a higher rating is not supported and not warranted. While the rating schedule for the foot includes higher schedular ratings under Diagnostic Code 5276 for acquired flatfoot and Diagnostic Code 5278 for claw foot, the record contains no evidence that, during the period on appeal, such symptomatology was present or that the Veteran's left foot disability was productive of additional symptomatology to warrant a higher rating under such codes. See 38 C.F.R. § 4.71a. Notably, March 2017 and April 2017 VA examiners specifically found that the Veteran does not have a diagnosis of flat foot, Morton's disease, weak foot, claw foot (pes cavus), hammer toe, or malunion or nonunion of tarsal or metatarsal bones. The Board further observes that the VA opinions stand uncontradicted by any other evidence found in the record. Based on the foregoing and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against an increased rating for the Veteran's left hallux valgus, flexion contracture involving the great toe's IP joint and degenerative changes. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). TDIU The Veteran contends that his service-connected right knee and left knee disabilities prevent him from securing or following substantially gainful employment since 1988. See Form VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability dated August 2013. 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. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As explained below, the Board finds that the competent evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. Initially, the Board observes that the Veteran has met the "one disability" rated at 60 percent under 38 C.F.R. § 4.16(a). Regulations provide that disabilities resulting from common etiology or a single accident or disabilities affecting a single body system (here, orthopedic) will be considered as one disability for the purposes of a single disability rating of 60 percent. Id. Here, the Veteran is currently service-connected for left foot disability, right foot disability, left knee and right knee disabilities, with a combined evaluation for compensation at 100 percent from October 23, 2017, and 70 percent from February 1, 2018 (bilateral factor for Diagnostic Codes 5257, 5284, and 5280). Thus, the schedular criteria for TDIU are met. With that said, however, the Board finds that the preponderance of the evidence is against the finding that the Veteran is precluded from engaging in substantially gainful employment solely as a result of his service-connected disabilities. Meaning, the Veteran's service-connected orthopedic disabilities do not render him unemployable. VA will grant entitlement to a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board observes that the record contains sufficient information of the Veteran's employment history. The Veteran's previous employment experience includes landscaping, assistance, and janitorial type of work. His formal application submitted shows dates of employment with his most recent part-time employment in 2010. An April 2013 VA examination report reflects that after personally interviewing the Veteran and conducting an examination, the VA examiner found that the Veteran's knees do not impact his ability to work. In fact, the examiner noted that the Veteran was previously employed at Salem VA and medically released with eligibility for re-hire. VA treatment records of June 2013 reflect the Veteran's report of receiving Social Security disability benefits and VA compensation for his foot and knee disabilities. An October 2016 VA examination reflects the Veteran's report of decreased mobility due to bilateral foot pain. Similarly, a March 2016 VA examination report reflects the Veteran's report of foot pain, but after clinical evaluation, the examiner found no objective evidence of functional impairment severe enough to prevent the Veteran from engaging in or obtaining gainful employment. Another VA examination of August 2017 reflects the Veteran's report of presently being employed as a day laborer in landscaping. A review of the Veteran's medical records, taken in total, do not suggest that he is actually unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities, specifically his foot and knee disabilities. The Board emphasizes that there are multiple persuasive VA medical opinions that weigh against the Veteran's claim and are found to have great probative value. The medical professionals who examined the Veteran in 2013, 2016 and 2017 consistently opined that his service-connected disabilities did not appear to be of such severity to render him unable to obtain or maintain substantially gainful employment. The VA examiners determined that the Veteran's disabilities, which resulted in some work limitation, would not preclude work entirely. In fact, one examiner pointed out that he was eligible for re-hire at a VA medical facility. The evidence simply does not establish that the Veteran's service-connected orthopedic disabilities alone results in unemployability. As such, TDIU is not warranted in this case. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board acknowledges that the Veteran is competent to report symptoms of his orthopedic disabilities and how such condition affects his employability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports during clinical evaluations of symptoms and their effect on his activities. But, as a lay person he is not competent to identify a specific level of disability according to the appropriate diagnostic code or to assess whether the symptoms preclude employment. Such competent evidence concerning the nature and extent of the Veteran's service-connected disabilities, and in particular his ability to work, have been provided by the VA medical professional who examined him. As such, the Board finds the Veteran's subjective complaints not competent medical evidence for this purpose. Thus, his assertions standing alone have little probative value and the Board assigns more weight to the medical opinions provided by VA examiners. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran is rendered unemployable due to his service-connected disabilities. Even though the Veteran met the applicable percentage standards, the Board nevertheless finds that the criteria under 38 C.F.R. § 4.16(a) have not been met and TDIU is not warranted. Accordingly, the claim must be denied. ORDER A rating in excess of 20 percent for chondromalacia patella of the right knee is denied. A rating in excess of 20 percent for chondromalacia patella of the left knee is denied. A rating in excess of 30 percent for left hallux valgus, flexion contracture involving the great toe's IP joint and degenerative changes is denied. Entitlement to a TDIU is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs