Single Judge Application, Separate Disability Ratings When Symptoms do not Overlap, C.F.R. 4.25, Murray v. Shinseki, 24 Vet.App.(2011)

Excerpt from decision below:, ""Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatologyof the other . . . conditions." 6 Vet.App. 259, 262 (1994) (emphasis in original). If the appellant's symptoms are "distinct and separate,"then the appellant is entitled to separate disability ratings for the various conditions. Id. =============== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0504 JAMES H. THAXTON, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. MOORMAN, Judge: The appellant, James H. Thaxton, appeals through counsel an October 19, 2009, Board of Veterans' Appeals (Board) decision that denied entitlement to an initial rating in excess of 10% for residuals of a right knee injury, with mild traumatic tricompartmental arthritis and pain (right knee disability), for the period prior to August 1, 2006. Record (R.) at 3-21. Both parties filed briefs, and the appellant filed a reply brief. The appellant seeks reversal of the Board's decision denying him a separate 10% disability rating for symptoms that he argues are not contemplated under the current Diagnostic Code assigned to his right knee condition. The Secretary concedes that a remand, but not reversal, is warranted on the matter. The appellant does not raise any argument with respect to the Board's grant of an initial rating of 60%, but no higher, for his right knee disability for the period beginning November 1, 2007. Accordingly, the Court considers abandoned on appeal any challenge to this latter matter. See Ford v. Gober, 10 Vet.App. 531, 535 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (1995), aff'd, 104 F.3d 1328 (Fed. Cir. 1997).1 Because there is no final Board decision regarding the remanded matter of entitlement to an initial compensable rating for a right knee neurological disorder (claimed as nerve damage), the Court lacks jurisdiction to consider that claim. See 38 U.S.C. § 7252(a) (providing that Court's jurisdiction is generally limited to review of final Board decisions); Kirkpatrick v. Nicholson, 417 F.3d 1361, 1365 (Fed. Cir. 2005) (holding that Board's remand order "was not a decision within the meaning of section 7252(a)"); see also Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1 This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S. C. §§ 7252(a) and 7266(a). A single judge mayconduct this review because the outcome in this case is controlled bythe Court's precedents and "is not reasonably debatable." Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990). For the following reasons, the Court will affirm in part and reverse in part the Board's October 2009 decision. I. FACTS Mr. Thaxton served on active duty in the U.S. Army from March 1959 to March 1962. Record (R.) at 888. He underwent surgery on his right knee in service. See R. at 733. A VA regional office (RO) granted service connection for the residuals of a right knee injury, with traumatic arthritis and pain, andassigneda 10% disabilityratingunder 38 C. F.R. § 4.71a, Diagnostic Codes (DCs) 5010-5261, effective August 26, 2003.2 R. at 728-35. Mr. Thaxton appealed and, in his Notice of Disagreement, he noted that a doctor told him that x-rays showed that he was missing a lot of cartilage. In November 2007, the Board remanded the matter for further development. R. at 492-96. Following development of the claim, the Board issued the October 2009 decision now on appeal. The Board found that"aseparate10 percent ratingunder DC 5259 would doublycompensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding."3 R. at 18; see 38 C.F.R. § 4.14 (2011) ("The evaluation of the same disability under various diagnoses is to be avoided."). This appeal followed. 1998). Limitation of motion of the right knee is the key consideration when assigning a disability rating for traumatic arthritis. See 38 C.F.R. § 4.71a, DC 5010 (providing that arthritis due to trauma will be rated in the same manner as degenerative arthritis), 5003 (in turn providing that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint involved), 5260 ( providing the schedule of ratings for limitation of flexion of the leg), 5261 (providing the schedule of ratings for limitation of extension of the leg). As relevant here, under DC 5261, when leg extension is limited to 10 degrees, the disability rating is 10%. 38 C.F.R. § 4.71a, DC 5261. 3 2 The VA Schedule of Ratings for the knee include DC 5258 and 5259: 5258 5259 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint . . . .20 Cartilage, semilunar, removal of, symptomatic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 2 II. ANALYSIS The appellant contends that the Board erred in denying a separate compensable disability rating for the symptomatic removal of his semilunar cartilage under DC 5259 because it wrongly found symptoms due to the removal of his cartilage as being "contemplated by his current rating of 10 percent under DC 5010-5261," R. at 18. App. Br. at 8-9. The Secretary argues that the Court should vacate and remand the matter because the Board failed to provide an adequate statement of reasons or bases for its explanation that the appellant's right knee symptoms did not warrant a separate rating under DC 5259. "Except as otherwise provided in [the rating] schedule, the disabilities arising from a single disease entity, e.g., arthritis, multiple sclerosis, cerebrovascular accident, etc., are to be rated separately as are all other disabling conditions, if any." 38 C.F.R. § 4.25(b) (2011). Separate compensable ratings may be assigned for multiple, associated disabilities so long as the symptoms do not overlap. As recently stated by this Court in Murray v. Shinseki, In Esteban v. Brown, the Court explained that, when determining whether to assign separate disability ratings under § 4.25(b), "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." 6 Vet.App. 259, 262 (1994) ( emphasis in original). If the appellant's symptoms are "distinct and separate," then the appellant is entitled to separate disability ratings for the various conditions. Id. In addition, two VA General Counsel Precedent Opinions, which are binding on VA, indicate that separate evaluations are allowed for separate disabilities arising from the same knee injury. See VA Gen. Coun. Prec. 9–2004 (Sept. 17, 2004) (authorizing separate evaluations forlimitation of leg flexion and limitation of leg extension); VA Gen. Coun. Prec. 23–97 (July 1, 1997) (authorizing separate evaluations for arthritis and subluxation or instability of the knee under Diagnostic Codes 5003 and 5257); see also Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010) ("The Board is 'bound in its decisions by the . . . precedent opinions of the chief legal officer of the Department.'" (quoting 38 U.S.C. § 7104(c))). Murray, 24 Vet.App. 420, 423 (2011). The Board's assignment of a disability rating is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of material fact "is 'clearly erroneous' when [the Court], after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been 3 committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). When applying this standard, if, after reviewing the record in its entirety, the Board's finding of fact is supported by a plausible basis, "the [Court] may not reverse it even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently." Gilbert, 1 Vet.App. at 52 (quoting Anderson v. City of Bessemer City, 470 U .S. 564, 573-74 (1985)). In this case, the Board found that Mr. Thaxton's right knee is currentlyrated as 10% disabling for the period prior to August 1, 2006, under DC 5010-5261 "for the disease of traumatic arthritis with a residual condition of limitation of extension of the knee," R. at 11. The Board reviewed the evidence of record and stated: [T]he Veteran's right knee disability is manifested by X-ray evidence of arthritis, near full extension and flexion limited to 110 degrees with pain and crepitus, further limitation of motion due to pain after prolonged use, symptomatic removal of semilunar cartilage, and well-healed scars. The Veteran had subjective complaints oflocking,catching,popping,clicking,swelling,flare-ups,andtenderness; however, there is no objective evidence of lateral instability, subluxation, or dislocated semilunar cartilage. R. at 15 (emphasis added). The Board further found: "[A]s there is X-ray evidence of arthritis, the Veteran has been assigned a 10 percent rating based on painful, limited motion." R. at 16. This apparently is based on DCs 5003 and 5010. The Board also stated that "the preponderance of the evidence indicates that the Veteran had a right knee partial meniscectomy, or removal of the semilunar cartilage, during service." R. at 17. The Board then discussed Mr. Thaxton's symptoms in more detail. At the October 2003 VA examination, the Veteran reported occasional swelling, but no mechanical symptoms. The Veteran had a mildly positive McMurray's test and tenderness along the medial and lateral joint lines, but there was no objective evidence of effusion. VA treatment records dated in June and October 2004 reflect that the Veteran reported popping and cracking with occasional locking, catching, and swelling; and physical examination showed pain with the McMurray's test and significant tenderness. At the January 2005 VA examination, the Veteran indicated that his knee would swell at the end of the day after he had been on it for long periods. . . . A November 2005 treatment record indicates that the Veteran reported popping and clicking, but no locking or catching, and he had pain with the McMurray's test. 4 R. at 17-18. Following the discussion of the evidence as quoted above, which did not include a discussion of Mr. Thaxton's limitation of motion, the Board concluded that " the Veteran's right knee was symptomatic as a result of his meniscectomy." R. at 18. The Board, however, then found that (1) "such symptoms are contemplated by his current rating of 10 percent under DC 5010-5261 [(limitation of extension)];" and (2) "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding [under 38 C.F.R. § 4.14]." Id.; see R. at 10, 12 ( citing to § 4.14). The Court concludes that, contrary to the Secretary's position, the Board's statement of its reason for denying the separate rating is adequate for judicial review. The Court further concludes that the Board clearly erred and that reversal, not remand, is warranted in this case because the only permissible view of the evidence is contrary to the Board's decision. See Johnson v. Brown, 9 Vet.App. 7, 10 (1996). The Board's determination that Mr. Thaxton is appropriately assigned a 10% rating only under DC 5261, which expressly is for limitation of extension of the knee, contradicts the evidence of record and "fails to adequately reflect a consideration of [Mr. Thaxton's] arthritis and its symptomatology." Murrayt, 24 Vet.App. at 424. At the time that the RO originally assigned Mr. Thaxton his 10% rating under DC 5010-5261 in December 2003, the RO focused on symptoms consisting of"pain when walking up inclines and getting up from a seated position," "mild pain on motion," "some crepitus at the last 30-40 degrees of flexion," and tender joint lines laterally. R. at 733. Subsequently developed evidence included VA medical records recording Mr. Thaxton's reports of (1) "popping and clicking in his knees" (R. at 434 (November 2005 VA progress notes)); (2) "some instability of his right knee when the pain gets to where it hits him suddenly" and"swelling at the end of the day," (R. at 542-43 (January 2005 VA medical record)); (3) "swelling, popping, locking, and catching" and a doctor's statement that he "ordered a knee brace for [Mr. Thaxton] to help him with some instabilityhe is having on long walks" (R. at 573 (October 2004 VA medical records)); and (4) "popping and cracking, and some mechanical symptoms" (R. at 629 (June 2004 VA medical records). The Court notes that symptoms of swelling, popping, clicking, instability, locking, catching, and cracking are not noted in DC 5261 and further notes that the symptom of "locking" is expressly used in DC 5258 in describing a symptom associated with a dislocated cartilage. Indeed, the Court notes that the Secretary concedes that "[n]either [DC 5010 5 nor DC 5261] contemplate[] Appellant's symptomatic removal of semilunar cartilage." Secretary's Br. at 7-8. The Court holds that the appellant is entitled to a 10% rating under DC 5259 for the removal of the appellant's cartilage, which the Board found to be symptomatic, as a separate rating in addition to the current 10% rating for arthritis of the right knee under DC 5003 and 5010. See Murray, 24 Vet.App. at 428 (reversing Board decision and remanding for Board (1) to reinstate protected 10% disability rating under DC 5257 for recurrent subluxation or lateral instability of the left knee; and (2) to assign a separate 10% disability rating for arthritis of the left knee under DCs 5003 and 5010). Accordingly, the Court will reverse the Board's finding that "a separate 10 percent rating under DC 5259 would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and will also reverse the Board's denial of a separate rating under DC 5259. I. CONCLUSION Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings, the October 19, 2009, Board decision is REVERSED as to the finding that a separate 10% disability rating under DC 5259 "would doubly compensate the Veteran for the same manifestations of his right knee disability, contrary to the rule against pyramiding" (R. at 18) and as to the Board's denial of a separate 10% disability rating under DC 5259 for the appellant's right knee disability for the period prior to August 1, 2006. The matter is REMANDED for adjudication consistent with this decision. The Board decision is otherwise AFFIRMED. DATED: September 30, 2011 Copies to: Virginia L. Carron, Esq. General Counsel (027) 6