Citation Nr: 0810718 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-30 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left knee. 2. Entitlement to a rating in excess of 20 percent for lateral instability of the left knee. 3. Entitlement to a rating in excess of 30 percent for status post knee replacement for degenerative joint disease of the right knee prior to May 17, 2005. 4. Entitlement to a rating in excess of 60 percent for status post knee replacement for degenerative joint disease of the right knee beginning May 17, 2005. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1941 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in February 2005. An October 2005 supplemental statement of the case, in pertinent part, granted an increased 60 percent rating for a right knee disability effective from May 17, 2005. Therefore, the Board finds the issues for appellate review are more appropriately addressed as listed on the title page of this decision. The Board notes that compensable service connection ratings have been assigned for disabilities to the lower extremities without apparent consideration of 38 C.F.R. § 4.68 (2007). This matter is referred to the RO for any action as may be required. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issues on appeal was obtained. 2. Traumatic arthritis of the left knee is manifested by X- ray evidence of arthritis with leg motion from 0 to 90 degrees; there is no probative evidence of limited extension or flexion limited to 45 degrees, including as a result of pain and dysfunction. 3. Lateral instability of the left knee disability is manifested by no more than a moderate impairment. 4. Prior to May 17, 2005, status post knee replacement for degenerative joint disease of the right knee was manifested by status post total knee replacement without evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity nor symptoms by analogy warranting more than a 30 percent rating. 5. The veteran began receiving the maximum schedular rating available for status post knee replacement for degenerative joint disease of the right knee effective May 17, 2005. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for traumatic arthritis of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260 (2007). 2. The criteria for a rating in excess of 20 percent for lateral instability of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). 3. The criteria for a rating in excess of 30 percent for status post knee replacement for degenerative joint disease, right knee, prior to May 17, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2007). 4. The criteria for a rating in excess of 60 percent for status post knee replacement for degenerative joint disease, right knee, after May 17, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in July 2003 and March 2005. Those letters notified the veteran of VA's responsibilities in obtaining information to assist in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that he send in any evidence in his possession that would support his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in April 2006. The Board further finds that the veteran has demonstrated actual knowledge of all relevant VA laws and regulations. See Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). The notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to move forward with these claims would not cause any prejudice to the appellant. Law and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). Upon award of service connection, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2007). The Court has held, however, that disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2007). 501 0 Arthritis, due to trauma, substantiated by X-ray findings: Rate as arthritis, degenerative. 500 3 Arthritis, degenerative (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, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2007). 505 5 Knee replacement (prosthesis). Prosthetic replacement of knee joint: For 1 year following implantation of prosthesis 100 With chronic residuals consisting of severe painful motion or weakness in the affected extremity 60 With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262. Minimum rating 30 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2007). 525 6 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 38 C.F.R. § 4.71a, Diagnostic Code 5656 (2007). 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007). 526 0 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007). 526 1 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Codes 5261 (2007). 526 2 Tibia or Fibula, impairment of: Nonunion of the tibia and fibula, with loose motion, requiring a brace 40 Malunion of: with marked knee or ankle disability 30 with moderate knee or ankle disability 20 with slight knee or ankle disability 10 38 C.F.R. § 4.71a, Diagnostic Codes 5262 (2007). 38 C.F.R. § 4.71, Plate II (2007). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (2007). "[F]unctional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded." Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1993). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. 38 C.F.R. § 4.59 (2007). VA General Counsel precedent opinion has held that a separate rating under Code 5010 for traumatic arthritis was permitted when a veteran who was rated under Code 5257 for other knee impairment (due to lateral instability or recurrent subluxation) also demonstrated additional disability with evidence of traumatic arthritis and a limitation of motion. See VAOPGCPREC 23-97 (Jul. 1, 1997). Separate ratings are also permissible for limitation of flexion and limitation of extension of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). It is noted, however, that a separate rating must be based upon additional disability. When a knee disorder is already rated under code 5257, the veteran must also have limitation of motion under code 5260 or code 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. See Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero- percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). Factual Background Service medical records show the veteran sustained an injury to the right knee during training in January 1942 and again on beach patrol in June 1942. He was treated for recurrent right knee synovitis in December 1942. Post service the veteran continued to received treatment at service department medical facilities. He underwent a right high tibial osteotomy in October 1984 and a total knee arthroplasty in March 2001. On VA examination in August 2001, the veteran reported that since his total knee replacement he had gone from using a walker to using a cane. He stated he did not use a brace on the right knee, but that he still had some insecurity going up and down steps. The examiner noted there was no laxity or movement in the joint within the joint space to varus or valgus stress. There was no crepitus on movement and range of motion studies revealed flexion to 100 degrees and extension to within 10 degrees. There was no redness or tenderness, but there was a slight bit of swelling at the superior aspect. The diagnosis was status post total knee replacement for degenerative joint disease with residuals. VA records show that pursuant to 38 C.F.R. § 4.30, and 4.71a, Diagnostic Code 5055, a 100 percent rating was assigned for status post total knee replacement, right knee, for 13 months, effective from March 20, 2001. A 30 percent rating was assigned effective from May 1, 2002. On VA examination report of April 2003, the veteran stated his right knee disability had increased in severity since his last examination and asserted his left knee arthritis was incurred as a result of service. He complained of daily right knee pain on ambulation with difficulty going up and down stairs. He stated that over the past 10 to 15 years he had experienced increasing left knee pain with episodic slight swelling and feelings of instability. The examiner noted the veteran walked carefully with a slight limp and a cane in his right hand. An examination of the right knee revealed no increased heat or obvious swelling. The joint moved smoothly and the veteran was able to extend and lock with fairly good strength. Flexion was to 110 degrees and passive flexion was to 120 degrees with some discomfort. An examination of the left knee revealed good alignment with some slight tenderness over the patella and crepitation. There was minimal tenderness to the medial and lateral plica areas. Range of motion was from 0 to 120 degrees. The knee was stable to posterior and anterior stress, but on medial and lateral stress there was 1+ instability. The veteran was able to perform half a knee bend and could stand on tiptoes and heels. The diagnoses included right total knee replacement and traumatic arthritis of the left knee. It was the examiner's opinion that the veteran's left knee disorder was caused by military service. During the September 2003 VA orthopedic examination, the veteran reported that his left knee pain was greater than on the right and that the knee would swell slightly. He stated the left knee gave way multiple times per week, but did not lock. He did not wear a knee brace and that his knee symptoms were essentially constant. The examiner noted the knees were somewhat hypertrophied in appearance. There was no evidence of redness, tenderness, or swelling. Range of motion studies revealed right knee extension to 5 degrees and flexion to 110 degrees without significant pain. The left knee revealed extension to 0 degrees and flexion to 120 degrees with no evidence of pain. There was minimal crepitus on motion to the right knee. There was no abnormality to varus or valgus stress. No drawer or McMurray signs were elicited. The diagnoses included post-traumatic degenerative joint disease and status post right total knee replacement with residuals. The VA examination report of January 2004 revealed no evidence of dislocation. There was full extension and flexion to 90 degrees, bilaterally, with pain at the extremes. There was no evidence of fatigue, weakness, lack of endurance, edema, effusion, tenderness, redness, heat, abnormal movement, or guarding of movement. There was objective evidence of painful motion to the knees and some medial instability of the left knee. The right knee was markedly larger than the left. There was no evidence of ankylosis, shortening of the leg, or inflammatory arthritis. The diagnoses included right knee arthritis, status postoperative times three with total knee replacement and residuals including avascular necrosis patella, and left knee degenerative joint disease with instability. X-rays revealed right total knee replacement and apparent avascular necrosis patella and degenerative changes to all compartments of the left knee. Private medical records dated in June 2004 show X-rays of the left knee revealed severe degenerative osteoarthritis in the medial compartment. Treatment included a steroid injection to the left knee. In statements and personal hearing testimony in support of his claims the veteran stated his knees were painful. He reported he experienced a lot of slippage in his left knee and that on occasion he had also fallen. He testified that he did not wear a brace on his left knee and that his doctors had not instructed him to wear one. VA examination report dated May 17, 2005, noted the veteran complained of pain, weakness, and swelling of the right knee. He used a cane, but denied any flare-up of symptoms or episodes of dislocation or subluxation. Physical examination revealed that on range of motion studies, the right knee lacked 25 degrees of straightening and flexed to 90 degrees. The left knee extended to 0 degrees and flexed to 90 degrees. Repetitive motion of the knees did not change range of motion. There was no apparent instability in the knees and no evidence of ankylosis or inflammatory arthritis. The diagnoses included multiple injuries to the right knee with total knee replacement and marked limitation of motion and multiple injuries to the left knee with limitation of motion. Subsequent VA treatment records noted the possibility of a left total knee replacement in the future. Analysis Based upon the evidence of record, the Board finds the traumatic arthritis of the left knee is manifested by X-ray evidence of arthritis with leg motion from 0 to 90 degrees. At no point during the appeals process was there probative evidence of limited extension or flexion limited to 45 degrees, including as a result of pain and dysfunction. Therefore, entitlement to a higher or "staged" rating in excess of 10 percent is not warranted. The Board also finds that throughout the appellate process, instability of the left knee disability was manifested by no more than a moderate impairment. In fact, VA examination in April 2003 revealed only medial and lateral stress with 1+ instability and examination in January 2004 revealed only some medial instability. Therefore, entitlement to a higher or "staged" rating in excess of 20 percent is not warranted. As to the status post knee replacement for degenerative joint disease of the right knee, the Board finds that prior to May 17, 2005, the disorder was manifested by status post total knee replacement without evidence of chronic residuals consisting of severe painful motion or weakness in the affected extremity. The medical evidence demonstrates that subsequent to his recovery from a total knee replacement in March 2001 range of motion studies revealed extension limited by no more than 5 degrees from full extension and flexion limited to no more than 90 degrees, including as a result of pain or dysfunction. There was no objective evidence of right knee instability or nonunion of the right knee joint. Therefore, the Board finds entitlement to higher "staged" or combined analogous ratings in excess of 30 percent prior to May 17, 2005, are not warranted. The record also shows the veteran began receiving the maximum schedular rating available for his service-connected right knee disability effective May 17, 2005. VA examination at that time reveled no evidence of recurrent subluxation, lateral instability, or nonunion of the right knee. Range of motion studies revealed extension limited by no more than 25 degrees from full extension and flexion limited to no more than 90 degrees, including as a result of pain or dysfunction. Therefore, the Board finds entitlement to higher "staged" or combined analogous ratings in excess of 60 percent after May 17, 2005, are not warranted. The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. There is no probative evidence demonstrating a more marked interference with the veteran's employment than contemplated by the significant disability ratings presently assigned. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the veteran's claims. ORDER 1. Entitlement to a rating in excess of 10 percent for traumatic arthritis of the left knee is denied. 2. Entitlement to a rating in excess of 20 percent for lateral instability of the left knee is denied. 3. Entitlement to a rating in excess of 30 percent for status post knee replacement for degenerative joint disease of the right knee prior to May 17, 2005 is denied. 4. Entitlement to a rating in excess of 60 percent for status post knee replacement for degenerative joint disease of the right knee beginning May 17, 2005 is denied. ___________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs