Citation Nr: 1826136 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 04-38 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for post-operative residuals of a left knee meniscectomy, based on limitation of flexion. 2. Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2005 and January 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that VA received the Veteran's opt-in form for the Rapid Appeals Modernization Program (RAMP) in March 2018; however, as the Veteran's claims are already before the Board, these claims are no longer eligible for RAMP. By way of history, the Veteran's claim for an increased disability rating for his left knee disability was denied by the RO in February 2005. The Veteran timely appealed and the matter was remanded by the Board in September 2007, June 2010, and April 2011 for additional development. In September 2013, the Board continued the Veteran's 10 percent disability rating for post-operative medial meniscectomy of the left knee with synovitis, but granted separate 10 percent disability ratings for limitation of flexion of the left leg and for symptomatic removal of semilunar cartilage of the left knee. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2014 order, the Court vacated the September 2013 decision with respect to the rating based on limitation of motion and remanded the matter to the Board for further proceedings consistent with a November 2014 Joint Motion for Partial Remand (JMR). The Court left undisturbed other aspects of the Board's decision, specifically the Board's continuance of a 10 percent disability rating based on recurrent subluxation or lateral instability, and the grant of a 10 percent disability rating for symptomatic removal of semilunar cartilage of the left knee. The matters were previously remanded by the Board in March 2015 for additional development. The matters have since returned to the Board. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's left knee disability was manifested by pain and flexion limited to, at worst, 45 degrees. 2. The Veteran is not rendered unemployable as the result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for post-operative residuals of a left knee meniscectomy, based on limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260 (2017). 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Duty to Notify VA's duty to notify was satisfied by letters in December 2004 and March 2016. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service VA and private treatment records, correctional institution treatment records, Social Security Administration (SSA) records, and lay statements have been associated with the record, to the extent they are available. In January 2010, March 2010, and December 2010, VA attempted to obtain medical opinions based on a review of the Veteran's claims file, as examination was not feasible due to the Veteran's incarceration. The VA examiner reviewed the Veteran's records but determined each time that it would be speculative to report on the Veteran's current level of left knee disability without examination. The Veteran was afforded a VA examination for his left knee in May 2013. Pursuant to the March 2015 Board remand, the Veteran was sent notice regarding how to substantiate his claim for TDIU in March 2016. Throughout 2017 and 2018, updated VA and private treatment records were obtained and associated with the electronic claims file. The Veteran was afforded a VA examination in December 2017. The examination report contained all information requested by the Board. The Agency of Original Jurisdiction (AOJ) then readjudicated the Veteran's claims in a January 2018 Supplemental Statement of the Case (SSOC). As such, the Board finds that the AOJ substantially complied with the 2017 remand directives and no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). With the exception of the January 2010, March 2010, and December 2010 VA medical opinions, the Board has carefully reviewed the VA examinations of record and finds that the examinations, along with the other evidence of record, are adequate for purposes of rendering decisions in the instant appeal. The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran's claims. II. Increased Rating Claim A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is seeking a disability rating in excess of 10 percent for his service-connected post-operative residuals of a left knee meniscectomy, based on limitation of flexion. Specifically, the Veteran contends that his left knee disability is more severe than reflected by his currently assigned disability rating. The Veteran is in receipt of a 10 percent disability rating for his service-connected left knee limitation of flexion under Diagnostic Code 5260. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, under which the Veteran is currently rated, a noncompensable rating is warranted when flexion of the leg is only limited to 60 degrees. A 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating is warranted when extension of the leg is limited to 5 degrees. A 10 percent rating is warranted when extension is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when the evidence shows extension limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 45 degrees. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Diagnostic Code 5257 is used to rate recurrent subluxation or lateral instability of the knee. A 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for impairment, and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Codes 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum). Based on the evidence of record, the Board does not find that the Veteran is entitled to a disability rating in excess of 10 percent for his left knee limitation of flexion, as there is no indication that the Veteran suffers from more than flexion limited to 45 degrees. Treatment records from 2004 to 2006 show that the Veteran suffered from constant pain, swelling, and mild edema of the left knee. See March 2004 Correctional Institution Treatment Record and June 2006, August 2006, and October 2006 VA Treatment Records. An August 2006 x-ray noted that the Veteran's left knee was fairly unremarkable. He had flexion to 120 degrees, with pain beginning at 110 degrees. From 2011 to 2013, the Veteran continued to have complaints of left knee pain and swelling. See February 2011, July 2011, January 2012, and July 2012 Correctional Institution Treatment Records. Range of motion of the left knee ranged from good to decreased. See April 2011 and October 2011 Correctional Institution Treatment Records. An April 2013 x-ray revealed no fractures, subluxation, dislocation, or joint effusion. The Veteran's bone density was normal and uniform and his alignment was excellent. No degenerative or unusual arthropathy was noted. The Veteran was afforded a VA examination for his left knee in May 2013. The Veteran reported a baseline pain of 6 out of 10 which would increase to an 8 or 9 out of 10 during flare-ups. He noted that he experienced flare-ups of the left knee after walking 200 feet or more. Range of motion testing revealed left knee flexion to 100 degrees, with pain beginning at 45 degrees, and 0 degrees of extension, with no objective evidence of painful motion. The VA examiner was unable to perform repetitive-use testing with three repetitions, as the Veteran stated his knee was too weak and painful. Joint stability testing revealed normal anterior instability, normal posterior instability, and normal medial-lateral instability on the Veteran's left side. The examiner noted that the Veteran had a meniscus semilunar cartilage condition that caused frequent episodes of joint locking, joint pain, and joint effusion. There was no evidence of patellar subluxation/dislocation or genu recurvatum and no ankylosis was indicated. The examiner noted that the Veteran's left knee disability functionally limited him from carrying things and climbing stairs or ladders. In 2015, the Veteran was noted to have restrictive movements of the lower leg with an unsteady gait due to his left knee disability. See September 2015 VA Treatment Record. October 2015 x-rays revealed very minimal degenerative joint disease in the left knee. Range of motion testing revealed left knee flexion to 92 degrees and extension to 8 degrees. See October 2015 VA Treatment Record. In a May 2017 VA treatment record, the Veteran reported pain and stiffness in the left knee. Aggravating factors included prolonged walking, standing, and sitting. The Veteran noted that medication and exercise relieved his symptoms and he worked out seven days a week. In October 2017, the Veteran was cleared for a total knee arthroscopy. The Veteran was afforded another VA examination in December 2017. The Veteran reported constant pain, which he rated an 8 out of 10. He used a prescribed brace due to knee laxity and had been using a cane for 20 years. The Veteran reported flare-ups of the left knee when walking more than 100 feet. He reported that there was numbness around his left knee, but he denied any tingling. Range of motion testing of the left knee revealed flexion to 70 degrees and extension to 0 degrees. Pain was noted on flexion. The Veteran was able to perform repetitive testing with flexion to 60 degrees and extension to 0 degrees. Pain, fatigue, weakness, and lack of endurance was noted to significantly limit functional ability with repeated use over a period of time and was estimated to limit flexion to 50 degrees. Although the examination was not conducted during a period of flare-up, the examiner estimated that pain, fatigue, weakness, and lack of endurance caused functional loss during a period of flare-up and reduced range of motion for flexion to 50 degrees. There was evidence of pain on weightbearing and non-weightbearing. Passive range of motion testing could not be conducted without risk of injury or perceived injury. The examiner noted that there was a slight history of left side lateral instability, a history of recurrent effusion noted by recurrent swelling of the left knee over the years, and no history of recurrent subluxation. The Veteran was unable to perform left knee joint stability testing due to moderate pain. Decreased sensation was noted around the left knee meniscectomy site. No muscle atrophy or ankylosis was noted. The VA examiner indicated that the Veteran's activities were markedly limited due to his left knee condition due to constant pain, a brace and cane used due to left knee laxity, flare-ups, and numbness around the knee. After reviewing the pertinent evidence of record, the Board finds that the evidence weighs against a disability rating in excess of 10 percent for post-operative residuals of a left knee meniscectomy, based on limitation of flexion for the entire period on appeal. The Veteran's left knee flexion was limited to, at worst, 45 degrees, even with consideration of pain after repetition and motion limited due to pain. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Consideration has been given to whether separate disability ratings could be assigned for the Veteran's left knee disability. The record reflects that in addition to limited range of flexion, the Veteran is already compensated for symptomatic removal of semilunar cartilage and mild instability under Diagnostic Codes 5259 and 5259-5257, respectively. The Board finds that there is no basis for assigning higher or separate disability ratings for the Veteran's left knee disability, as there has been no evidence of ankylosis; dislocated semilunar cartilage with episodes of "locking," pain, and effusion to the joint; impairment of the tibia and fibula; or genu recurvatum. Here, the Board notes that while the May 2013 VA examination indicated that the Veteran suffered from left knee locking, pain, and effusion, there was no evidence that the Veteran had dislocated semilunar cartilage. The Board further notes that an additional disability rating for limitation of extension is not warranted. Although range of motion testing in October 2015 revealed left knee extension to 8 degrees, this finding is an outlier and range of motion studies from the 2013 and 2017 VA examinations show that the Veteran normally had extension to 0 degrees, with no pain on extension. The Board notes that Diagnostic Code 5055 applies to knee replacements and provides for a 100 percent rating for one year following the implantation of a prosthesis, after which the condition is rated on the residuals with a minimum rating of 30 percent. While the Veteran was cleared for a total knee arthroscopy in October 2017, there is no indication in the record that the Veteran underwent this surgery. Therefore, a disability rating for a left knee replacement is not warranted. The Board acknowledges the Veteran's assertion that he experiences chronic pain, swelling, and decreased range of motion of the left knee. The Veteran, as a lay person, is competent to provide such evidence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1994) (finding lay testimony competent when it concerns features or symptoms of injury or illness). While the Board finds the Veteran's lay statements relating to his symptomatology credible, these statements, together with the clinical findings of record, do not provide a basis for the assignment of a disability rating in excess of 10 percent for any portion of the appeal period. Accordingly, the Board finds that a disability rating in excess of 10 percent for post-operative residuals of a left knee meniscectomy, based on limitation of flexion is not warranted. The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). III. TDIU The Veteran contends that as a result of his service-connected left knee disabilities, he is unable to obtain and maintain substantially gainful employment. The Veteran is service connected for post-operative medial meniscectomy of the left knee with synovitis with a 10 percent disability rating, limitation of flexion of the left leg with a 10 percent disability rating, and symptomatic removal of semilunar cartilage of the left knee with a 10 percent disability rating. The Veteran has a combined 30 percent disability rating since November 15, 2004. Thus, he does not meet the scheduler criteria for TDIU, pursuant to 38 C.F.R. § 4.16(a). On the Veteran's March 2016 Application for Increased Compensation Based on Unemployability, the Veteran indicated that he had not worked since 2007. He indicated that he had last worked as a stucco finisher from 2005 to 2007 and left this job due to his left knee disability. The Board notes that the Veteran had not referenced any other occupation on his TDIU application; however, the evidentiary record reveals that the Veteran has been incarcerated a number of times over the last three decades. A review of the evidence does not reflect that the Veteran's left knee disability presents circumstances that require referral to the Director of the Compensation Service for extraschedular consideration of the Veteran's claim for TDIU. In this regard, the record does not reflect that the Veteran's left knee disability is productive of symptoms that render the Veteran unemployable. While the Veteran has reported left knee swelling and pain upon walking 100 feet, the Veteran's left knee disability does not preclude the Veteran from engaging in sedentary employment. The May 2003 VA examiner determined that the Veteran's left knee disability impacted his ability to work in that he could not carry things or climb stairs and ladders. However, the examiner noted that the Veteran was not precluded from sedentary and clerical occupations. Similarly, the December 2017 VA examiner noted that the Veteran's activities were markedly limited due to his left knee disability, but indicated that the Veteran was capable of sedentary daily activities and employment. Medical evidence also suggests that the Veteran is unemployable due to the combination of service and non-service-connected conditions. Specifically, the Board notes that the Veteran is diagnosed with neurocognitive and schizoaffective disorders that have manifested in suicidal ideation, auditory hallucinations, and paranoia. See January 2016 and April 2017 VA Treatment Records. Consistent with this assessment, the Veteran has been in receipt of SSA disability since February 2016 for non-service-connected conditions of schizophrenic/paranoid/other psychiatric disorder and organic mental disorder. See July 2016 SSA Disability and Determination Transmittal. SSA determined these disorders caused marked difficulties in maintaining social functioning, concentration, persistence, and pace. See July 2016 SSA Consultative Examination. In summary, the Veteran is not entitled to TDIU on a schedular basis, and the evidence does not present an exceptional case which warrants referral for extraschedular consideration. Accordingly, the preponderance of the evidence is against the Veteran's claim of entitlement to TDIU and the claim must be denied. ORDER Entitlement to a disability rating in excess of 10 percent for post-operative residuals of a left knee meniscectomy, based on limitation of flexion is denied. Entitlement to TDIU is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs