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