Citation Nr: 1808656 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-30 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 20 percent for traumatic arthritis of the right knee, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the case for additional development in December 2011 and in January 2016. In April 2017, the Board remanded the issue again for further development. The remand required the RO to take appropriate steps to afford the Veteran a new VA examination. In compliance with the remand directives, a new VA examination was obtained. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. For the period on appeal, the Veteran's traumatic arthritis of the right knee has been manifested by flexion of 0 to 60 degrees and extension of 60 to 0 degrees, with pain on active range of motion and weight bearing not resulting in additional functional loss, and degenerative arthritis confirmed by x-ray. 2. For the entire period on appeal, the Veteran's right knee disability picture was adequately contemplated by the rating schedule. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for traumatic arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.4, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran has not 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 duty to assist argument). II. Rating of Traumatic Arthritis of the Right Knee Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citing 38 U.S.C. §§ 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2017). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 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. See 38 C.F.R. § 4.59 (2017). Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Where there is a question as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). For VA rating purposes, traumatic arthritis is treated as degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2017). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, but with x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With x-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). With any form of arthritis, painful motion is an important factor. It is the intent of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). For the purpose of rating disability due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f) (2017). The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Leg flexion limited to 60, 45, 30, and 15 degrees warrant noncompensable, 10 percent, 20 percent, and 30 percent evaluations, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). Leg extension limited to 5 degrees warrants a noncompensable evaluation, and extension limited to 10 degrees warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2017). VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59,990 (2004). The basis for the opinion is that the knee has separate planes of movement, each of which is potentially compensable. Id. Under the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Arthritis manifested by limitation of motion and instability of the knee are two separate disabilities, and a veteran may be rated separately for these symptoms. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997) (when a claimant has arthritis and is rated under instability of the knee, those two disabilities may be rated separately under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 or 5010 and Diagnostic Code 5257.). Under Diagnostic Code 5258, a 20 percent rating is warranted for a dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). Under Diagnostic Code 5259, a 10 percent disability rating is warranted for a symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2017). Diagnostic Code 5259 requires consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of the semilunar cartilage may result in complications producing loss of motion. VAOPGPREC 9-98 (Aug. 14, 1998). Therefore, a knee disability cannot be separately rated under Diagnostic Code 5259 and a limitation-of-motion diagnostic code. The Veteran's right knee traumatic arthritis is currently rated at 20 percent. III. History The Veteran was afforded an August 2007 VA knee examination. The right knee appeared to be normal, but the Veteran walked with an antalgic gait and he rose from the chair with stiffness. He was uncomfortable with ambulating. Flare ups were not an issue because he was in constant pain. Range of motion of the right knee was flexion from 0 to 115 degrees and extension to 0 degrees, with pain at the end of the range of motion. The range of motion of the knee was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Following repetitive motion, the Veteran did not have an increase in weakness, fatigability, incoordination, or pain, however, he had reproducible exacerbation of his pain when at the limits of range of motion. The Veteran had inferior patellar tenderness as well as some medical joint line tenderness. Anterior and posterior collateral ligaments were intact and McMurray's test was equivocal. The Veteran's anterior and poster drawer signs were negative and there was no instability on examination. X-rays of the knee showed mild degenerative changes, mainly involving the medial and patellofemoral spot, significantly changed from the previous x-ray. The VA examiner confirmed the diagnosis of traumatic arthritis of the right knee. The April 2012 VA examination noted a diagnosis of traumatic degenerative joint disease of the right knee. The Veteran reported no flare-ups. The range of motion was flexion at 100 degrees and extension at 0 degrees. The range of motion during repetitive-use testing with 3 repetitions was flexion at 100 degrees and extension at 0 degrees. There was a functional loss or impairment due to less movement than normal and pain on movement. The VA examiner reported that there was no instability or subluxation. The imagining showed traumatic arthritis. The VA examination cited a September 2007 right knee radiograph. The imaging showed that there was mild tricompartment degenerative arthrosis predominantly involving the medial femorotibial and patellofemoral spaces. It was stable since the previous study. There were no acute osseous abnormalities, and there was no significant joint effusion. The Veteran was afforded a June 2017 VA examination. The flexion (0 to 140) was 0 to 60 degrees. Extension (140 to 0) was 60 to 0 degrees. There was no pain with non-weight bearing (at rest) and no pain on passive range of motion. There was pain with weight bearing and active range of motion, but not resulting in functional loss. The Veteran reported also having pain in the left knee. He used a right knee brace and a cane. VA treatment records show reports of knee pain and impressions of arthritis that are substantially the same. In the January 2018 Informal Hearing Presentation (IHP), the Veteran and his representative assert that the current symptomatology of this issue on appeal warrants a higher evaluation than the schedule for rating disabilities allow. They assert that due to this, an extra-schedular consideration for an increased evaluation is also warranted. IV. Analysis The current evaluation contemplates pain on motion. It is also consistent with limitation of flexion to 30 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 15 degrees. Separate evaluation may be assigned for compensable limitation of extension, instability, subluxation or meniscus impairment. The June 2017 Correia examination shows no pain with non-weight bearing (at rest) and no pain passive range of motion. It shows pain with weight bearing, but does not result in or cause additional functional loss. At worst during this period, the Veteran had flexion of 0 to 60 degrees and extension of 60 to 0 degrees, as reported in the June 2017 VA examination report. Even considering the Veteran's report of pain with flexion and extension in the June 2017 VA examination report, objective testing did not reveal functional loss approximating limitation of flexion to 15 degrees. Furthermore, there was no functional loss of extension and there was no instability, subluxation or meniscus impairment. To the extent that the Veteran has implies that there is instability, his statements are far less probative and less credible than the observations of skilled professionals. In sum, the evidence of record does not indicate that the Veteran's traumatic arthritis of the right knee warrants a rating in excess of 20 percent. The provisions of 38 CFR §§4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca v. Brown and Mitchell v. Shinseki have been considered and are not warranted. The evidence of flexion of the knee does not warrant a higher rating. Even with all his complaints, no credible evidence suggests that flexion is functionally limited to less than 30 degrees. V. Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1) (2017). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected tinnitus and bilateral hearing loss disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's traumatic arthritis of the right knee with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. At the Veteran's August 2007 VA examination, he reported that he uses a cane in the morning when it his right knee is more stiff. He has increased pain as he walks up a hill or walks up steps. He is no longer able to carry anything more than ten pounds or so walking up steps because he has to support himself using the rail. He is still unable to use a push mower and had to get a riding mower to cut his grass. The April 2012 VA examination showed that the Veteran had weakness and pain in the joint. He had difficulty using steps and walking on inclines. He had physical therapy in the past year with little relief. The Veteran reported using a brace for activities. The VA examiner opined that the Veteran is incapable of physical labor but can perform sedentary labor. Regarding occupational and social impairment, the April 2015 VA psychiatric examination shows "a majority of impairment is related to PTSD." The June 2017 VA examination showed that pain with weight bearing did not result in additional functional loss. The VA examiner opined that the Veteran's right knee disability would impair load bearing activities, or use of stairs or ladders. The Veteran reported using a right knee brace. The Veteran reports traumatic arthritis of the right knee. The Board is of the opinion that the rating schedule measures and contemplates each aspect of the Veteran's traumatic arthritis of the right knee, including pain, limitation of motion, and functional loss. The Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the evidence does not indicate that the combined effects of his service-connected disabilities require extraschedular consideration. As such, further consideration of referral to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration on a collective basis is unnecessary. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding "that the Board is required to address whether referral for extraschedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). In short, the rating criteria reasonably describe the Veteran's traumatic arthritis of the right knee disability level and symptomatology. Consequently, given that the applicable schedular rating criteria are more than adequate in this case, referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 20 percent for traumatic arthritis of the right knee, to include on an extraschedular basis is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs