Citation Nr: 1648551	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  07-24 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1. Entitlement to a compensable rating prior to October 26, 2012 for right hip disability manifested by limitation of extension.  

2. Entitlement to a compensable rating prior to October 26, 2012 for left hip disability manifested by limitation of extension.  

3. Entitlement to a rating greater than 10 percent for the period prior to October 26, 2012, a rating greater than 20 percent for the period prior to February 21, 2013, a rating greater than 30 percent for the period from May 1, 2014 to March 8, 2016, and greater than 60 percent from March 8, 2016, for a right knee disability characterized as degenerative arthritis prior to February 21, 2013, and post- prosthetic replacement thereafter.

4. Entitlement to a rating greater than 10 percent for the period prior to October 26, 2012, a rating greater than 20 percent for the period prior to October 14, 2014, a rating greater than 30 percent from December 1, 2015 to March 8, 2016, and a rating greater than 60 percent from March 8, 2016, n increased rating for a left knee disability characterized as degenerative arthritis prior to October 14, 2014, and post-prosthetic replacement thereafter.

5. Entitlement to a rating in excess of 10 percent for right knee laxity of the medial collateral ligament, up until February 21, 2013.

6. Entitlement to a rating in excess of 10 percent for left knee laxity of the medial collateral ligament, up until October 14, 2014.

7. Entitlement to an earlier effective date for award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Esq.


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty on the U.S. Army from January 1978 to           January 1979. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.     

The Veteran was scheduled for a Travel Board hearing in May 2011.  He did not report for this hearing and did not request it to be rescheduled.  Therefore, his hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2016).  

This case was before the Board in October 2011 when it was remanded for additional development.  In a November 2015 Board decision the Board denied a  higher evaluation for right and left hip disabilities, and the remaining claims involving bilateral knees and the TDIU earlier effective date were remanded to the RO. Thereafter, the Veteran appealed the November 2015 Board decision regarding the denial of increased ratings for right and left hip disabilities to the U.S. Court of Appeals for Veterans Claims (Court).  The appeal was limited in its scope, to entitlement to a compensable rating for the hip disorders prior to October 26, 2012; the assigned rating since October 26, 2012 stands.  By agreement of the parties to that matter, an April 2016 Joint Motion for Partial Remand (Joint Motion) vacated the Board's decision in this regard and remanded the appealed claims back to the Board.  The Board revisits the issues below.      

In April 2016 the Veteran appointed a private attorney as his designated representative in this case.

The claim for an earlier effective date for a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1. For the period before October 26, 2012, the Veteran's right and left hip disabilities were manifested by painful motion.

2. The Veteran's right and left knee disabilities are manifested by no more than slight instability or laxity. 

3. For the period prior to March 8, 2012, the Veteran's right and left knees were manifested by painful motion, but no compensable limitation of motion and no evidence of locking and effusion and no additional functional loss.

4. For the period from March 8, 2012, to February 21, 2013, on the right knee and to October 14, 2014, on the left knee, the Veteran's knees were manifested by pain, effusion, and locking with meniscus impairment, but no compensable limitation of motion, and no additional functional loss.

5. For the period from May 1, 2014, to March 8, 2016, on the right knee, and December 1, 2015, to March 8, 2016, on the left knee, the Veteran knees were manifested by moderate but not severe pain in the knees.

6. For the period from March 8, 2016, both knees have been manifested by severe pain and/or weakness. 


CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a               10 percent rating for a right hip disability prior to October 26, 2012.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Code 5251 (2016).

2. Resolving reasonable doubt in the Veteran's favor, the criteria are met for a            10 percent rating for a left hip disability prior to October 26, 2012.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Code 5251 (2016).

3. The criteria for a rating higher than 10 percent for right knee degenerative arthritis prior to March 8, 2012, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261 (2016). 

4. The criteria for a rating higher than 10 percent for left knee degenerative arthritis prior to March 8, 2012, are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261 (2016). 


5. The criteria for a 20 percent rating, but no higher, for the period from March 8, 2012, to February 21, 2013, for right knee degenerative arthritis are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261 (2016).

6. The criteria for a 20 percent rating, but no higher, for the period from March 8, 2012, to October 14, 2014, for left knee degenerative arthritis are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5010, 5258, 5260, 5261 (2016).

7. The criteria for a rating greater than 30 percent rating for the period from May 1, 2014, to March 8, 2016, for status post total right knee replacement are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5055, 5260, 5261 (2016).

8. The criteria for a rating greater than 30 percent for the period from December 1, 2015, to March 8, 2016, for status post total left knee replacement are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5055, 5260, 5261 (2016).

9. The criteria for a rating greater than 60 percent rating for the period from March 8, 2016, for status post total right knee replacement are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5055, 5260, 5261 (2016).

10. The criteria for a rating greater than 60 percent rating for the period from March 8, 2016, for status post total left knee replacement are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.45, 4.59; 4.71a, Diagnostic Codes 5055, 5260, 5261 (2016).

11. The criteria are not met for a rating in excess of 10 percent for right knee laxity.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5257 (2016).

12. The criteria are not met for a rating in excess of 10 percent for left knee laxity.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5257 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist the Veteran

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A.               §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits.  See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2016).  VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. 

On claims being decided, the Veteran received timely and thorough VCAA-compliant notice on how to substantiate these issues.  VA's duty to assist has been properly fulfilled.  The AOJ has obtained relevant VA Medical Center (VAMC) and private outpatient records, and arranged for VA Compensation and Pension examinations.  See generally, 38 C.F.R. 4.1 (for application of VA rating schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition).  Regarding claims for increase, moreover, given primary issue is disability over several years and not current level, and so relying on prior evidence, re-examination is not required for stricter musculoskeletal disability evaluation standards.  See Correia v. McDonald, 28 Vet. App. 158 (2016) (discussing parameters of VA musculoskeletal examination, with respect to literal requirements articulated in 38 C.F.R. § 4.59).  On his own behalf, the Veteran has provided additional medical evidence and lay witness statement.  He did report for a scheduled Travel Board hearing, and another Board hearing was not requested.  There is no indication of further development to complete.  

Regarding the claim for increased rating for bilateral hip disorder, in particular, since limited to prior to October 26, 2012 there is minimal likelihood of development required for additional new evidence.  The benefit sought of a compensable rating is moreover being granted below, further inapposite to VCAA oversight or error. 

Accordingly, the Board has a sufficient basis upon which to issue a decision upon the claims.

Merits of the Claims

A.  Compensable Rating for Hip Disorders, prior to October 26, 2012

Under VA law, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2014);               38 C.F.R. § 4.1 (2016).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned           if the disability more closely approximates the criteria required for that rating.               38 C.F.R. § 4.7.

The Veteran has been awarded service connection for hip strain (extension) secondary to degenerative arthritis of the respective knees.  In both affected hips, the Veteran received a noncompensable rating prior to October 26, 2012, and a 10 percent rating thereafter. As discussed above, the only period on appeal is the period prior to October 26, 2012.

The Veteran in addition has been awarded separate ratings regarding hip disability, for limitation of flexion and abduction.  These separate ratings in question were all awarded on or after October 26, 2012.  The Veteran did not appeal therefrom.  

Under the VA rating schedule, Diagnostic Code 5251 provides for limitation of extension of the thigh, under which a single 10 percent rating is assignable for extension limited to 5 degrees.

Other rating schedule provisions apply.  Under Diagnostic Code 5252, for limitation of flexion of the thigh, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating where limited to 30 degrees; a 30 percent rating where limited to 20 degrees; and a maximum assignable 40 percent rating, where limited to 10 degrees.

Diagnostic Code 5253 also provides for a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees.           A 20 percent rating requires limitation of abduction with motion lost beyond                 10 degrees.

Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees.  38 C.F.R. § 4.71a, Plate II. 

In addition, Diagnostic Code 5003 provides for evaluation of degenerative arthritis (hypertrophic or osteoarthritis).  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 (DC 5200 etc.).  When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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.  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, rating is to be done based on x-ray evidence of involvement of a specified combination of joint groups.)

When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria.  Id.; see also 38 C.F.R.            §§ 4.40, 4.45 and 4.59.

In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

For purpose of rating service-connected disability, when after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3 (closely paralleling general statement of VA doctrine on reasonable doubt, found elsewhere at 38 C.F.R. § 3.102).  

Looking at the case history, as indicated a November 2015 Board decision, and              in pertinent part, denied a compensable rating prior to October 26, 2012, having found that the Veteran did not have the requisite limitation of motion proven under any applicable diagnostic code; and further, then finding, that while the Veteran did experience hip pain (with no other overt or reported signs of functional loss), the aforesaid was already compensated by the existing rating scheme.     

As mentioned, the Veteran appealed to the Court.  The April 2016 Joint Motion, approved by the Court, sent the matter of compensation prior to October 26, 2012 back to the Board to reconsider a compensable rating for right and left thigh extension, in view of the Veteran's painful motion.  The Joint Motion cited                   38 C.F.R. § 4.59 for proposition that the rating schedule is intended "'to recognize actually painful... joints... as [being] entitled to at least the minimum compensable rating for the joint.'"  The Joint Motion further cited recent reported caselaw indicating "notwithstanding the fact that painful motion of a joint is not a recognized disability with a corresponding [Diagnostic Code], 38 C.F.R. § 4.59 allows for compensation of a disability that results in painful motion of a joint, but is otherwise not severe enough to warrant a compensable rating under an assigned [Diagnostic Code]."  See Petitti v. McDonald, 27 Vet. App. 415, 425 (2015).  
The Board has reviewed this case one more time, and in light of what the                Joint Motion asserts, particularly too with view to ensuring that any reasonable question of fact is resolved in favor of the claim, the relief sought of compensable, 10 percent ratings for both right and left hip extension is warranted.

In so doing, it is tenable to find that the Veteran had painful motion, both hips,           during extension. August 2009 VA outpatient evaluation for chronic hip pain, specifically, indicated referral for chronic bilateral hip pain, left worse than right for 10 years; worsening over the previous 3-4 years.  Additionally, the October 2012 VA Compensation and Pension examination, outside the rating period, provides relevant information describing bilateral hip pain "over the years."  

Based on the above, the Veteran had painful motion of the hips and a 10 percent rating prior to October 26, 2012 for each hip is warranted.  

B.  Increased Rating for Knee Disorders

Applicable Law

The VA rating schedule provides, Diagnostic Code 5055 for prosthetic replacement of knee joint assigns a 100 percent evaluation for one year following implantation of prosthesis.  With chronic residuals consisting of severe painful motion or weakness in the affected extremity a 60 percent rating is assigned.                         With intermediate degrees of residual weakness, pain or limitation of motion rate  by analogy to Diagnostic Codes 5256, 5261, or 5262.  The minimum rating is               30 percent. 

Diagnostic Code 5260 provides for a noncompensable (0 percent) rating when leg flexion is limited to 60 degrees.  A 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent for flexion limited to 30 degrees; and 30 percent for flexion limited to 15 degrees.

Diagnostic Code 5261 provides for a noncompensable rating when leg extension is limited to 5 degrees.  A 10 percent rating is assigned for extension limited to                   10 degrees; 20 percent for extension limited to 15 degrees; 30 percent for extension limited to 20 degrees; 40 percent for extension limited to 30 degrees; and 50 percent for extension is limited to 45 degrees.

VA's Office of General Counsel in a precedent opinion determined that separate disability ratings may be assigned for limitation of knee flexion and for limitation of knee extension without violation of the rule against pyramiding (at 38 C.F.R.                   § 4.14), regardless of whether the limited motions are from the same or different causes.  See VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990  (2004).

Diagnostic Code 5256 applies to ankylosis of the knee.  This diagnostic code is not applicable here, ankylosis being total loss of joint mobility.  That is not demonstrated in this case. 

Normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

Knee instability is evaluated under 38 C.F.R. § 4.71a , Diagnostic Code 5257 for other impairment of the knee, with recurrent subluxation or lateral instability.                 A 10 percent rating is assigned for slight recurrent subluxation or lateral instability; 20 percent for moderate recurrent subluxation or lateral instability; 30 percent for severe recurrent subluxation or lateral instability.

The terms "moderate" and "severe," amongst other components of the rating criteria are not expressly defined in the rating 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.

Diagnostic Code 5257 is limited to considering symptoms of subluxation or lateral instability, and is not a catch-all for any "other" impairment.  See DeLisle v. McDonald, 789 F.3d 1372 (Fed. Cir. 2015).

Factual Background

Reviewing the record, there is a dearth of evidence prior to October 2012 regarding the Veteran's knee conditions.  Several VA examination appointments were missed due to various reasons. VA Medical Center (VAMC) outpatient records indicate that March 2006 the Veteran complained of knee pain in the past causing back pain. Motor functioning was normal 5/5 in the lower extremities, sensory was intact to light touch, deep tendon reflexes were 2+ bilaterally, and Babinski was negative bilaterally. No diagnosis related to the knees was reported. In November 2007 the Veteran walked in for pain in the knees, amongst other areas. On examination his knees were negative for pain with full range of motion. No treatment for the knees was noted.  In October 2007 the Veteran reported increasing pain in his knees.

On March 12, 2008, the Veteran underwent a spine examination, during which his gait was within normal limits and he did not require any assistive device for ambulation. Neurological testing of the lower extremities was normal. 

The next relevant information comes from the Veteran's September 2012 statement, that he had completed the last of three injections to his right knee with what he stated was an experimental treatment.  He was undergoing corticosteroid treatment in his left knee, which had failed on the right side.  

On VA Compensation and Pension examination October 26, 2012, the diagnosis was old meniscus tears of the knee; meniscectomies of the knees; chondromalacia patellae; mid-compartment osteonecrosis of the knee.  Medical history included bilateral knee braces, May 2008.  In October 2008 he had received a second steroid injection into the right knee.  He had a series of three injections in the right knee in September 2012, and left knee injections.  He reported flare-ups impacted the function of the knee and/or lower leg, in that he could not stand or walk for long periods of time and had to sit or lie down.  The flare-ups occurred frequently.  Range of motion consisted of right knee flexion to 80 degrees, with 75 degrees considering painful motion; extension to 0 degrees, no evidence of pain.  Left knee flexion was to 75 degrees, with 70 degrees considering painful motion; extension to 0 degrees, no pain.  Repetitive motion testing had no effect.  Additional forms of functional loss found were less movement than normal; weakened movement; pain on movement; interference with sitting, standing and weight-bearing.  Joint stability tests were normal.  There was no evidence or history of recurrent patellar subluxation/dislocation.  There was a history of meniscus condition, with a meniscal tear, frequent episodes of joint locking, pain, effusion.  The Veteran had undergone meniscectomy procedures, both sides, last time in 2002.  There was residual continued pain and decreased range of motion.  Right knee degenerative arthritis was documented.  

A November 2012 opinion from a VA affiliated medical provider Dr. L.T.C., podiatrist, obtained from the Appeals Management Center (AMC) following a prior remand, stated that reviewing the file the knee disorders had not changed in several years (since last remand).  In summary, objective clinical findings and x-rays were consistent with the diagnosis of mild degenerative knee disorder, bilateral, with chondromalacia patella, right side.  However, there was no clinical evidence of laxity of the knee joints bilaterally.  

On February 21, 2013, the Veteran had right total knee arthroplasty.  No complications were indicated. His right knee was assigned a 100 percent rating from February 21, 2013 until May 1, 2014. The left knee was evaluated as 20 percent disabling.

An April 2013 private medical report, associated with Social Security Administration (SSA) disability benefit records, indicates that the knees had no tenderness on palpation.  Range of motion was -15 to 150 degrees right side, -5 to 150 degrees left side.  He had a very swollen, warm right knee.  There was a marked atrophy of the right quads and hamstrings.  X-ray of the right knee showed joint replacement arthroplasty with no evidence for loosening in very satisfactory alignment.  The diagnosis was osteoarthritis of the knees with right knee joint replacement, and mild left knee osteoarthritis by x-ray.  

On May 2014 VA examination, it was indicated that since total right knee replacement, follow-up showed the knee to be in good shape.  However, the Veteran still had left knee pain which had increased over the years and he was scheduled for left side replacement.  Range of motion testing indicated right knee flexion to 130 degrees, 125 degrees with painful motion; extension to 0 degrees.    Left knee flexion was to 120 degrees, and 115 degrees with painful motion; extension to 0 degrees.  Repetitive testing did not change results.  Joint stability test were normal in both knees, and there was no history of recurrent patellar subluxation or dislocation.  As result of right knee replacement about one year previously, the Veteran demonstrated mild decrease of flexion.  There was degenerative arthritis.  There was not patellar subluxation.  The condition was considered to impact his ability to work in that the Veteran had pain and decreased range of motion in the left knee when standing or walking for prolonged periods            of time.  An additional section to the examination report listed as "Mitchell criteria" indicated right knee range of motion from 0 to 125 degrees, left knee from 0 to 115 degrees.

A May 2014 VAMC progress note indicates diagnosis of knee pain, arthritis, estimated return to work date (or previous level of activity date) 5 months. On October 14, 2014, the Veteran had a total knee replacement on the left knee. He was assigned a 100 percent rating from October 14, 2014 to December 1, 2015.

On June 2015 VA examination, the diagnosis at outset was status post total knee replacement, bilateral knees.  There was no report of flare-ups or functional loss.  Range of motion, right was from 0 to 120 degrees; 10 to 110 degrees repetitive motion; 20 to 100 degrees repeated use over time.  The left knee was 0 to 110 degrees; 20 to 100 degrees repetitive motion; 30 to 90 degrees repeated use over time.  There was some impairment of ambulation, evidence of pain with weight bearing, evidence of crepitus, and moderate to severe (worse left) pain on palpation of surrounding soft tissue.  Additional contributing factors to disability, right side, were disturbance of locomotion, interference with standing, and instability of station.  Same was found for the left side, with additional symptom shown of swelling.  There was no muscle atrophy.  There was no form of ankylosis.             Joint stability tests were all normal.  There was no history of recurrent patellar dislocation, acquired genu recurvatum, leg length discrepancy, or other unresolved condition.  Both knees had history of meniscal tears.  It was estimated that following recent surgeries for post-knee replacement, the Veteran in both knees had "intermediate degrees of residual weakness, pain or limitation of motion."  He used as assistive devices a brace and walker.  Functional impact of the condition was impaired prolonged standing, walking, running.  

At a March 8, 2016 VA re-examination, the Veteran had right knee range of motion of 0 to 105 degrees; left knee range of motion 0 to 120 degrees.  For both knees, he had functional loss in form of could not walk up or down stairs, or complete prolonged walking or standing, nor could kneel or squat.  There was pain with weight bearing, and crepitus.  With repetitive testing, there was 0 to 70 degrees right knee; 0 to 115 degrees, left knee.  When examined immediately after repetitive use, this was 0 to 55 degrees right knee; 0 to 50 degrees left knee.  Then during a flare-up, estimated range of motion was 0 to 35 degrees right knee; 0 to 20 degrees left knee.  There was not muscle atrophy.  There was moderate left side recurrent subluxation.  There was severe lateral instability, both sides.  There was history of recurrent effusion with any repetitive use.  Joint stability tests were all +1, absent the posterior instability test which was normal.  There was left side moderate recurrent patellar dislocation.  For both total knee joint replacement procedures, the Veteran was estimated to have had chronic residuals consistent of severe painful motion or weakness.  For occupational tasks, the Veteran reported he could not walk, stand, kneel, squat, lift, or sit for prolonged periods.  

Analysis of Increased Rating Claim

The Veteran's status-post knee replacement right and left knee disorders are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5055.  The RO began this after respective knee replacement operations.  For the right knee, the Veteran received 100 percent from February 21, 2013; 30 percent from May 1, 2014; and 60 percent from March 8, 2016.  For the left knee, he received 100 percent from October 14, 2014; 30 percent from December 1, 2015; and 60 percent from March 8, 2016. 

Prior to the knee replacement, the Veteran's knees were evaluated based on arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5010 -- the right knee 10 percent up until October 26, 2012 and 20 percent from October 26, 2012 to February 21, 2013;  the left knee was 10 percent up until October 26, 2012 and 20 percent from October 26, 2012 to October 14, 2014.

The Veteran's knee laxity/instability was evaluated separately under 38 C.F.R. § 4.71a, Diagnostic Code 5257, with the right knee as 10 percent disabling until February 21, 2013, and the left knee as 10 percent up until October 14, 2014.  

Considering the evidence, the Board finds that the Veteran's right and left knee disabilities warrant an increase from a 10 percent to a 20 percent rating for the period from March 12, 2008, to October 26, 2012, with all other evaluations staying the same. 

Additionally, a rating greater than 10 percent for instability of the right knee prior to February 21, 2013 and prior to October 14, 2014 for the left knee is not warranted, and no separate rating for instability is warranted after these dates. The evidence of record prior to February 2013 and October 2014 does not show more than mild laxity or shows no laxity or subluxation. Moreover, after February 2013 and October 2014, there is no evidence of laxity or subluxation. Accordingly, an increased rating is not warranted for instability and the claim for such is denied.

Prior to October 26, 2012, the Veteran's right and left knees were a rated 10 percent disabling for painful motion under DC 5010 and by application 38 C.F.R. § 4.59 (2016).  This period contains no evidence of compensable limitation of motion higher than 10 percent under DCs 5260 or 5261. Thus no increase under these provisions is possible.  However, the October 26, 2012 examination indicates that the Veteran was assigned a brace in May 2008, had steroid injections in 2008, and had meniscus tears with locking, swelling, and pain prior to October 26, 2012. Thus, a 20 percent evaluation under DC 5258 for impairment of the meniscus with frequent episodes of locking, swelling and pain is appropriate. Examining the record, the Board notes that at his March 12, 2008 spine examination he did not have an antalgic gait and he did not use any assistive devices such as braces. Thus, the Board determines that his symptoms began after this date, which is supported by the information in the October 2012 examination. Thus, for the period from March 12, 2008 to October 26, 2012, the Veteran's right and left knee disabilities warrant an increase to 20 percent disabling. Because pain is part of the now assigned 20 percent rating, a separate rating under DC 5010 for painful motion cannot be assigned. Thus, as of March 12, 2008, the appropriate Diagnostic Code is 5258 until his knee replacement surgeries on both knees. Prior to March 12, 2008, the evidence does not support a rating greater than the assigned 10 percent for painful motion. There is no evidence of limitation of motion at a compensable rate, and no evidence that the criteria of DC 5258 were met. As the symptoms of the Veteran's meniscus tears were being evaluated under DC 5010, a separate 10 percent rating under DC 5259 is not warranted as it would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2016).

For the period from October 26, 2012 to February 21, 2013, on the right, and to October 14, 2014, on the left, the evidence does not support a rating greater than 20 percent. There is no indication of limitation of motion at a compensable level under DCs 5260 and 5261, the Veteran is already compensated under DC 5258 at 20 percent which is the highest rating available under this provision, and there is no evidence of ankylosis to warrant a higher rating under 5256. There also is no evidence of genu recurvatum or impairment of the tibia or fibula; thus higher ratings under DCs 5262 and 5263 are not applicable. 

Entitlement to a rating greater than 30 percent from May 1, 2014 to March 8, 2016, on the right and December 1, 2015 to March 8, 2016, on the left is also denied. A higher 60 percent rating under DC 5055 would require severe painful motion or weakness of the affected extremity. The evidence only shows moderate pain not severe, and no evidence of severe weakness. Additionally, there is no evidence of limitation of motion compensable at a rate higher than 30 percent disabling. 

For the period beginning on March 8, 2016, a rating higher than 60 percent is not warranted for either the right or left knee. No higher rating is available under Diagnostic Code 5055.  Moreover, there is no basis for a higher rating under any other Diagnostic Code governing the knee. 38 C.F.R. §§ 4.71a, DC 5260, 5261 (2016).


ORDER

A 10 percent rating for right hip disability prior to October 26, 2012 is granted, subject to applicable law on compensation.

A 10 percent rating for left hip disability prior to October 26, 2012 is granted, subject to applicable law on compensation.

Entitlement to a rating greater than 10 percent for right knee arthritis for the period prior to March 8, 2012, is denied.

Entitlement to a rating greater than 10 percent for the period prior to March 8, 2012, for left knee arthritis is denied.

Entitlement to a 20 percent rating, but no higher, for right knee arthritis for the period from March 8, 2012, to February 21, 2013, is granted. 

Entitlement to a 20 percent rating, but no higher, for right knee arthritis for the period from March 8, 2012, to October 14, 2014, is granted. 

Entitlement to a rating greater than 30 percent from May 1, 2014, to March 8, 2016, for status post right knee replacement, is denied.

Entitlement to a rating greater than 30 percent from December 1, 2015, to March 8, 2016, for status post left knee replacement, is denied.

Entitlement to a rating greater than 60 percent for the period from March 8, 2016, for both right and left status post knee replacement is denied.

A rating in excess of 10 percent for right knee laxity is denied.

A rating in excess of 10 percent for left knee laxity is denied.


REMAND

The Veteran and his attorney have raised numerous claims that are presently the subject of review by a Decision Review Office (DRO) at the Regional Office level, and their outcome may materially impact the disposition of the remaining issue on appeal for entitlement to an earlier effective date for a TDIU award.  Therefore, readjudication of the earlier effective date claim must be deferred.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  See also Parker v. Brown, 7 Vet. App. 116 (1994).

It was mentioned at one point by the Veteran that he sought a hearing before a DRO on the TDIU effective date claim, and that matter can be addressed on remand.

Accordingly, the case is REMANDED for the following action:

1. Obtain the Veteran's most recent VA outpatient treatment records and associate them with the Veterans Benefits Management System (VBMS) electronic claims folder.   

2. Determine whether the Veteran wants a DRO hearing (or other available proceeding) at the Regional Office level regarding his claim for earlier effective date for TDIU.  If so, schedule the requested proceeding.

3. Then readjudicate the matter on appeal for earlier effective date based upon all evidence of record, but not until after resolution of all other claims currently pending on DRO review.  If the benefit sought on appeal is not granted in full, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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