Citation Nr: 1303059 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-26 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left knee disability secondary to service-connected right knee disability. 2. Entitlement to an increased rating for service-connected right total knee replacement, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from December 1960 to February 1963. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDINGS OF FACT 1. The Veteran's left knee disability was aggravated by his service-connected right total knee replacement. 2. The Veteran's service-connected right total knee replacement is shown to have been productive of pain, swelling, and some limitation of motion, but not ankylosis, nonunion of the tibia and fibula, or right knee extension limited to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability, based on aggravation resulting from the service-connected right disability, has been established. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 2. The schedular criteria for a rating in excess of 30 percent for service-connected right total knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5055, 5256, 5261, 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he has a left knee disability that was caused or aggravated by his service-connected right knee disability. A VA X-ray report for the left knee, dated in August 2008, contains an impression noting chondrocalcinosis, mild degenerative arthritis of the femoral-tibial joint, and degenerative arthritis of the patellofemoral joint. A VA examination report, dated in January 2009, shows that the examiner concluded that it was less likely as not that the Veteran's left knee condition was a direct result of his service-connected right knee replacement. In November 2012, the Board noted that the January 2009 VA examiner had not provided an opinion as to the possibility that the Veteran's right knee disability had aggravated a left knee condition, and requested the opinion from a medical specialist at the Veterans Health Administration (VHA). The requested VHA opinion was received in January 2013. The author, a VA physician, summarized the relevant medical history, and concluded that the Veteran's service-connected right knee disability had aggravated his left knee disorder. The physician explained the following: the Veteran had sustained left knee injuries that were not associated with his right knee, to include a 1986 volleyball injury. Degenerative spurs were noted in the left knee in 1987. The Veteran's arthritic changes were due to his volleyball injury and not due to his right knee condition. However, since the Veteran's total right knee replacement in 2007, he has continued to have significant pain over the lateral side of his knee, and recurrent effusions. This is indicative of either loosening of the hardware, low-grade infection, or just chronic synovitis. When a knee is swollen like that, he obviously would have a significant limp, which would put added stress on an already arthritic knee. There would be no way to quantify any degree of disability at this point. The physician concluded that the Veteran's service-connected right knee disability aggravated his already arthritic left knee. He stated that there would be no way to quantify the aggravation as far as range of motion was concerned. The Board finds that service connection for a left knee disability is warranted. The January 2013 VHA opinion shows that a VA physician concluded that the Veteran's service-connected right knee has aggravated his left knee. There is no competent, countervaling opinion of record. Therefore, the Board finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, service connection for a left knee disability is warranted on the basis of aggravation. Accordingly, service connection for a left knee disability is granted. As the Board has fully granted the Veteran's claim for service connection, the Board finds that a detailed discussion of the VCAA is unnecessary. Any potential failure of VA in fulfilling its duties to notify and assist the Veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). II. Increased Rating The Veteran asserts that he is entitled to a rating in excess of 30 percent for his service-connected right total knee replacement. Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § Part 4 (2011). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Solomon v. Brown, 6 Vet. App. 396, 402 (1994). More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). With regard to the history of the disability in issue, the Veteran's service treatment reports show that in 1961, he sustained a simple fracture of the right femur. He was also found to have chondromalacia of the right patella. He underwent an open reduction and internal fixation. He finished his active duty on limited duty. Following separation from service, he was found to have arthritis of the right knee, and he underwent two arthroscopic surgeries. On September 5, 2007, the Veteran underwent a right total knee replacement. An August 2008 X-ray report noted that alignment was unremarkable, and that there were fixation rods and screws in the healed distal femoral fracture, with callus formation. See 38 C.F.R. § 4.1. In July 1963, the RO granted service connection for a right knee disability, evaluated as 10 percent disabling. The RO subsequently increased the Veteran's rating to 30 percent. In November 2007, following a total right knee replacement, the RO assigned a 100 percent (temporary total) rating, effective September 5, 2007, and a rating of 30 percent as of November 1, 2008. On December 11, 2008, the Veteran filed his claim for an increased rating. In February 2009, the RO denied the claim. The Veteran has appealed. As an initial matter, as the Veteran's claim was received on December 11, 2008, the appeal period is from December 11, 2007 (i.e., one year prior to the date of receipt of the claim) to the present. 38 C.F.R. § 3.400(o)(2) (2012). However, as a 100 percent rating is in effect from September 5, 2007 through October 31, 2008, the Veteran's increased rating claim is moot during this portion of the appeal period, and need not be discussed. The RO has evaluated the Veteran's right knee disability under 38 C.F.R. § 4.71a, DC 5055. Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5055, for one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). Under 38 C.F.R. § 4.71a, DC 5256 (ankylosis of the knee), a 40 percent rating is warranted for ankylosis in flexion between 10 degrees and 20 degrees. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Under 38 C.F.R. § 4.71a, DC 5261 (limitation in extension of the leg), a 40 percent rating is warranted for extension limited to 30 degrees. Under 38 C.F.R. § 4.71a, DC 5262 (impairment of the tibia and fibula), a 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion, requiring brace. Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA progress notes show that in April 2009, the Veteran sought emergency room treatment for right knee symptoms, with complaints of pain and swelling. On examination, the right knee had a full range of motion (specific degrees of motion were not provided). He reported wearing an Ace wrap with a knee brace, and taking 6 to 8 aspirins per day. He reported that he was "very active," that he tried to keep active, and that he walked as much as he can. He denied any injury or trauma. On examination, there was tenderness on palpation, and moderate effusion. The right knee had extension to five degrees short of full extension (i.e., -5 degrees) and flexion to about 100 degrees. The examiner noted that he was "quite active" on his knee. It was recommended he take 600 mg. of Ibuprofen three times per day. He was given Vicodin for severe pain. Reports, dated in May 2009, note that X-rays were noted to show good component alignment. The assessment was tight iliotibial band. The examiner indicated that the Veteran's brace was to be refitted, and that he was to be started on physical therapy for some stretches and range of motion exercises. He was to learn a home program for IT (iliotibial) band stretching. The Veteran was provided with a knee orthosis, and he reported that it was comfortable and supportive. Reports, dated in June 2009, show that the Veteran participated in four sessions of physical therapy. These reports note the following: strength was 3/5 on flexion, and 4/5 on extension. He had an independent gait to clinic, with no assistive device. Sensation was symmetrical and intact to light touch except in the area around the distal scar at the knee. Tone was within normal limits. The right knee had swelling, with pain on palpation at the lateral aspect of the joint. Patellar tracking was WFL (within full limits). A VA examination report, dated in January 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of progressively worse symptoms, and reported using a brace, and NSAIDs. The Veteran reported having pain, stiffness, constant effusions, and moderate, daily flare-ups of joint disease lasting hours. He reported increased swelling during the day. Gait was antalgic. There was no other evidence of abnormal weight bearing. On examination, the right knee had effusion, tenderness, and pain at rest, and there was guarding of movement. There was no instability, patellar abnormality, or dislocation. There was severe pain and tenderness on palpation on the lateral side. The right knee had a 10 degree limitation of extension, and flexion to 95 degrees. The diagnosis was status post right knee replacement with residual lateral pain and decreased range of motion. The right knee was noted to have an effect on the usual daily activities as follows: "none" (grooming, toileting, feeding), "mild" (dressing, bathing, traveling), "moderate" (chores, driving), "severe" (exercise, shopping), and "prevents" (sports, and recreation). A VA examination report, dated in May 2011, shows that the examiner stated that the Veteran's claims file had been reviewed. The Veteran complained of right knee pain and swelling. He stated that he took 600 milligrams (mg.) of NSAIDs two to three times per day. He reported pain, stiffness, swelling, and denied having deformity, giving way, instability, weakness, incoordination, decreased speed of joint motion, episodes of dislocation or subluxation, effusions, and flare-ups of joint disease. The examiner noted that there were no limitations on standing, that the Veteran was able to walk one to three miles, and that he intermittently/occasionally used a cane. Gait was normal, and there was no other evidence of abnormal weight bearing. On examination, there was bony joint enlargement, edema, and guarding of movement. There was no grinding, instability, patellar abnormality, meniscus abnormality, or ankylosis. There was tenderness of palpation of the lateral patellar area, and swelling. The right knee had a 10 degree limitation of extension, and flexion to 115 degrees. The diagnosis was status post right knee TKA with residual lateral discomfort, pain, chronic swelling and impaired ROM (range of motion). The report notes that he exercises safely, and that he did not participate in walking and other exercises. The right knee was noted to have an effect on the usual daily activities as follows: "none" (grooming, toileting, dressing, bathing, and feeding), "mild" (exercise, shopping, and chores), and "prevents" (sports). The examination report notes that an August 2010 X-ray report contains an impression noting post-surgical changes, with no abnormalities evident. A January 2013 VHA opinion, discussed supra, notes that the Veteran has had significant pain over the lateral side of his right knee, and recurrent effusions, and that his right knee swelling would obviously cause "a significant limp." The Board finds that the claim must be denied. There is no competent evidence to show that the Veteran's right knee is productive of extension limited to 30 degrees. Furthermore, although the Veteran is shown to wear a brace, there is no evidence of ankylosis of the right knee, or a nonunion of the tibia and fibula, with loose motion, and the criteria for a rating in excess of 30 percent for the right knee under DCs 5256 and 5262 are not shown to have been met. Accordingly, the Board finds that the criteria for a rating in excess of 30 percent under DC's 5256, 5261, and 5262 are not shown to have been met, and that the claim must be denied. With regard to DC 5261, a higher evaluation is not warranted for functional loss. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); VAGCOPPREC 9- 98, 63 Fed. Reg. 56,704 (1998). In this case, the medical evidence does not contain findings showing that an increased rating is warranted, based on sufficiently severe symptoms that would support a higher rating on the basis of functional loss due to pain. VA progress notes note a full range of motion in April 2009. They further show that in May 2009, strength was 3/5 on flexion, and 4/5 on extension. At that time, he had an independent gait to clinic, with no assistive device. Sensation was symmetrical and intact to light touch except in the area around the distal scar at the knee. Tone was within normal limits. The findings in the January 2009 VA examination report have been discussed, to include the effects on daily activities. An August 2010 X-ray report contains an impression noting post-surgical changes, with no abnormalities evident. Upon VA examination in May 2011, the examiner noted that there were no limitations on standing, that the Veteran was able to walk one to three miles, and that he intermittently/occasionally used a cane. Gait was normal. In summary, the medical evidence is insufficient to show that the Veteran has such symptoms as muscle atrophy, neurological impairment, atrophy, loss of strength, or incoordination attributable to the right knee which are so severe as to warrant an increased rating. Therefore, even taking into account the notations of knee pain and swelling, the Board finds that, when the ranges of motion in the right knee are considered together with the evidence of functional loss due to right knee pathology, the evidence is insufficient to show that the loss of motion in the right knee more nearly approximates the criteria for a 40 percent rating under DC 5261, even with consideration of 38 C.F.R. §§ 4.40 and 4.45. In addition, given the foregoing findings, the Board finds that the evidence is insufficient to show that the Veteran's disability is productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity. In this regard, while there are findings indicating that the Veteran has pain on motion, they are insufficient to show "severe" painful motion, and there is insufficient evidence to show that the right knee is productive of severe weakness. Indeed, in view of the evidence as described in detail herein - which demonstrates that the symptoms do not meet intermediate degrees of residual weakness, pain, or limitation of motion - it follows that the 60 percent rating for is not assignable under the circumstances of this case. Therefore, the criteria for an increased rating under 38 C.F.R. § 4.71a, DC 5055 have not been met. Separate ratings under 38 C.F.R. § 4.71a, DC Code 5260 (limitation of flexion) and DC 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). In this case, however, as set forth above, none of the medical evidence shows that the Veteran's right knee flexion is limited to the extent necessary to meet the criteria for a separate compensable rating. 38 C.F.R. § 4.71, Plate II, DC 5260. Additionally, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04. The VA General Counsel has held that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). However, the Veteran is rated under Diagnostic Code 5055 for knee replacement, which incorporates the range of symptoms that can affect the knee. As such, the provisions for assigning separate ratings for the knee are no applicable under the circumstances of this case. In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart v Mansfield, 21 Vet. App. 505 (2007), and whether the veteran is entitled to increased evaluations for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of the disability in issue, such that an increased evaluation is warranted. The Board acknowledges that the Veteran is competent to testify as to symptoms associated with his disabilities which are non-medical in nature, however, he is not competent to testify as to the severity of the disabilities. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature). In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as is stated above, the preponderance of the evidence is against the appellant's claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA medical records. The Veteran has been afforded two VA examinations. The reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board therefore concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the Veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for a left knee disability is granted, on the basis of aggravation. A rating in excess of 30 percent for service-connected right total knee replacement is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs