Citation Nr: 0810372 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-35 301 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for limitation of extension of the left knee. 2. Entitlement to an initial disability rating in excess of 10 percent for a left knee lateral meniscus tear. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The veteran served on active duty from November 1979 to March 2004. This matter comes to the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction of the veteran's claim was later transferred to the Waco, Texas RO. The issues on the title page have been recharacterized to comport with the medical evidence discussed herein. FINDINGS OF FACT 1. The veteran's left knee disability is manifested by symptomatic removal of semilunar cartilage and degenerative changes. 2. The veteran's left knee disability is not manifested by locking, ankylosis, recurrent subluxation, lateral instability or impairment of the tibia and fibula. 3. The veteran's left knee disability is manifested by extension of the left knee, limited to 15 degrees. CONCLUSIONS OF LAW 1. Service connection for limitation of extension of the left knee is warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 4.71a, Diagnostic Code 5261 (2007). 2. The criteria for an initial rating in excess of 10 percent for a left knee lateral meniscus tear have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5260, 5262 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in March 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claim on appeal. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91. Thus, because the notice that was provided in connection with the grant of service connection was legally sufficient, VA's duty to notify in this case has been satisfied. VA has obtained the veteran's service medical records and VA records. She has been provided VA medical examinations in furtherance of substantiating her claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file, and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, the Court recently 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). Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. The veteran's left knee disability is currently evaluated as 10 percent disabling under Diagnostic Code 5259 pertaining to symptomatic removal of the semilunar cartilage. This is the maximum evaluation provided under this diagnostic code. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (zero percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (zero percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court interpreted these regulations in DeLuca v. Brown, 8 Vet. App. 202 (1995), and held that all complaints of pain, fatigability, etc., shall be considered when put forth by a veteran. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Factual Background In January 2004, the veteran received a general VA/DOD pre- discharge medical examination. At the time, the veteran reported left knee pain at a level of 10 on a 10 point scale, which she described as sharp, burning and stabbing. She reported that the knee would lock about once a month, aggravated with normal daily activity. She stated that her left knee pain would usually resolve in 1 to 2 weeks after treatment and was alleviated by treatment with NSAIDs. She did not then use corrective or assistive devices, except for a left knee brace. There was no history of surgery. The veteran denied dislocation, subluxation, inflammatory arthritis or prosthesis. Her left knee disability had no effect on her usual activities of daily living, but she could not do any running and had difficulty with squatting activities. Physical examination revealed normal posture and gait. There was no ankylosis. Passive flexion was from zero to 140 degrees. Active flexion was from zero to 130 degrees, with pain throughout the motion. The examiner noted that decreased range of motion could be experienced as the condition comes and goes throughout the day with exacerbations. The examiner could not provide an estimation regarding additional limitation without resorting to speculation, but noted that range of motion might be additionally limited with exacerbations, pain, fatigue and lack of endurance. He diagnosed left knee lateral meniscus tear. The veteran's service medical records show continuing complaints regarding the left knee. A service medical record shows that the veteran underwent a left knee arthroscopy for a lateral meniscus tear on March 3, 2004. Following this surgery, the veteran underwent physical therapy apparently beginning in May 2004. A May 19, 2004, record of physical therapy shows that the veteran presented to physical therapy with a complaint of locking of the left knee. At the time, she had her left knee bent at 30 degrees and walked with an antalgic gait. After about 90 minutes of therapy, she was able to fully extend the knee, albeit with some pain. The veteran stated that this was the first problem she had with her knee following her March 2004 surgery. An orthopedic note dated May 25, 2004, shows that the veteran had regained extension, with a range of motion from zero to 120 degrees and lessened pain, with effusion. These records show a single complaint of dislocation of the left knee cap on July 12, 2004. Recurrent dislocation of the patella was questionable at the time and active range of motion was from zero to 110 degrees. A July 25, 2004, note refers to an episode of left knee locking about three weeks prior, with subsequent swelling and pain. It reflects that following this incident the veteran spent a few days on crutches and an immobilizer. An April 4, 2005, note shows reports of left knee locking and chronic pain. This note shows complaints of locking, which would not resolve until the knee was physically strengthened and braced for 2 to 3 days. This note refers to the March 2003 arthroscopic surgery and recommends an orthopedic consultation. Of record is a May 2005 VA orthopedic consultation note. This note shows that the veteran complained of frequent locking of the left knee. It also noted the prior history of arthroscopic surgery of the left knee. Physical examination revealed a 1+ Lachman anterior cruciate in the left knee. McMurray and drawer tests were negative. There was no swelling, but mild effusion was noted. There was no instability to varus or valgus stress. X-rays showed some narrowing of the lateral compartment of the patellofemoral compartment, but an otherwise essentially normal left knee. MRI showed degenerative changes in the articular cartilage of all 3 joint compartments and degenerative changes in both menisci, more severe in the lateral. Also revealed by MRI was a bucket handle tear on the lateral meniscus with displacement of the bucket handle fragment into the intercondylar notch region. The assessment was of loose body, left knee. On July 27, 2005, the veteran underwent another left knee arthroscopy and left posterior-lateral meniscectomy at a VA hospital. A post-operative diagnosis of posterior-lateral bucket handle tear of the left knee was made. A nursing note dated the day after this surgery notes that the veteran denied complications, was doing well and was up and about her home with caution. An August 2005 VA orthopedic note dated one week following the July 2005 surgery notes trace effusion in the left knee, no erythema and that only one suture remained from the operative incision. The plan for treatment was to gradually exercise the knee back to normal activity. The veteran reported feeling much better and that she had only used crutches for five days following the surgery. A March 2006 VA physician note shows complaint of swelling in the knee for 2 to 3 months. Also noted was a complaint that the knee would occasionally pop and that it felt like it had fluid on it. In August 2007 the veteran presented to the VA medical center for reevaluation of left knee pain. The examining physician noted that the veteran had last had arthroscopic surgery in 2005 and that the veteran was complaining of pain similar to that experienced at that time. The veteran denied any locking or giving of the knee and related that most of the pain was located in the back of the knee. Exam revealed mild effusion and no instability. Lachman, McMurray and drawers tests were negative. X-rays showed degenerative changes with lateral joint space narrowing and degenerative joint disease was diagnosed. In a statement dated in September 2007, the veteran related a history of 2 surgeries on her left knee. She stated that she continued to use a brace on this knee and that she still experienced swelling, grinding and instability of the left knee. In October 2007, after the veteran stated that her left knee condition had worsened in severity, she was provided a VA examination to address the severity thereof. The veteran reported pain in the knee as 7 out of 10, as well as stiffness and swelling on a daily basis by evening hours. She denied any locking of the knee. She reported mild relief with Mobic and denied any side effects of this medication. She reported flare-ups with ambulation in excess of a quarter mile and standing in excess of 5 minutes, without incapacitation. She reported using crutches when she needed to walk from a parked site to her workplace, but the examiner did not find that crutches were necessary. It was noted that she was wearing a brace on this knee. She reported having missed about 7 to 8 days of work that year due to her left knee. Physical examination revealed that the left knee was diffusely tender with inferior and medial joint area swelling. There was mild genu valgum bilaterally. Extension was to 12 degrees and flexion was to 95 degrees. with pain at these ranges and with continued use, but no change in range of motion. Lachman and McMurray tests were negative. Guarding of movement upon flexion and extension was noted. The veteran walked with an antalgic gait. There was no ankylosis. No additional impairment of joint function from pain, fatigue, weakness, lack of endurance or incoordination was found. The examiner diagnosed moderate degenerative joint disease, which had worsened since 2005. Analysis The RO assigned an initial 10 percent rating under Diagnostic Code 5259; that is the maximum rating under that code. The Board will accordingly consider all potentially applicable codes to determine if a higher rating is warranted. Several diagnostic codes are inapplicable in this case. Diagnostic Codes 5256 and 5262 require evidence of ankylosis of the knee, and nonunion or malunuion of the tibia and fibula, respectively. As outlined above, there is no clinical evidence showing this symptomatology associated with the veteran's left knee disability. Her symptomatology is associated with a left lateral meniscus tear and subsequent surgery and degenerative changes. A 20 percent evaluation is not warranted for the veteran's left knee disability under Diagnostic Code 5258. Although the veteran's left knee disability is manifested by a left lateral meniscus tear, there is no evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. The medical evidence, as outlined above, shows numerous subjective complaints of locking of the left knee as well as pain and effusion; however, there is no clinical evidence of locking, as shown by VA examination. Similarly, a 20 percent rating is not warranted under Diagnostic Code 5257 as the medical evidence does not show moderate recurrent subluxation or lateral instability. The October 2007 VA examination shows extension of the left knee limited to 12 degrees, with complaints of pain on motion. The Board finds that this equates with a finding of extension limited to 15 degrees, which warrants a 20 percent evaluation. A higher evaluation is not warranted because the goniometrics, as outlined above, do not show limitation of extension to 20 degrees or more. Resolving all doubt in favor of the veteran, the Board finds that she is entitled to service connection and a 20 percent evaluation, but no more, under Diagnostic Code 5261, effective from October 10, 2007, the date of the VA examination. Hart, 21 Vet. App. at 505. With respect to Diagnostic Code 5260 the Board does not find that a compensable evaluation is warranted. None of the goniometrics outlined above show flexion limited to 60 degrees or less. Indeed, flexion was limited at most to 95 degrees with consideration of the DeLuca factors noted above. The Board notes that the veteran's has reported locking on a number of occasions, but that range of motion always returned to a degree greater than that required for a compensable evaluation in under this diagnostic code. Accordingly, the evidence does not establish that a compensable evaluation is warranted under this diagnostic code. With respect to a possible extraschedular evaluation the Board notes that there is no evidence of any unusual circumstances, such as such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder that would warrant extraschedular consideration. The Board acknowledges that the veteran has had two arthroscopic surgeries on her left knee and has missed some work due to her left knee disability, but does not find that this equates with the criteria necessary for extraschedular consideration. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial rating in excess of 10 percent for a left knee lateral meniscus tear, is denied. Service connection for limitation of extension of the left knee is granted, with assignment of a 20 percent rating, effective from October 10, 2007, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs