Citation Nr: 0814990 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 03-02 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased evaluation for a right knee disability, currently evaluated as 10 percent disabling for degenerative changes, with a separate 10 percent rating for instability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The veteran served on active duty from November 1975 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that continued the veteran's evaluation for his service connected right knee disability at a 10 percent rating, with a separate 10 percent rating for instability. This issue was remanded for further development in January 2004, September 2005, and May 2006. All requested development having been completed, this claim now returns before the Board. The Board notes that, during the course of this appeal, the veteran has received numerous temporary total evaluations for varying periods. Further, for the time period from August 2, 2007, the date of the veteran's surgery for his right total knee replacement, the veteran was awarded a temporary total rating for one year, and after that, from September 1, 2008, has already been found to be entitled to a 30 percent rating, the minimum rating following total knee replacement. As the veteran is currently in receipt of a 100 percent evaluation at the time of adjudication of this claim, the only periods at issue are those for which, during the course of this appeal, the veteran has not been in receipt of a 100 percent evaluation. Those periods would be from May 15, 2002, to December 9, 2003, from February 1, 2004, to April 13, 2005, from June 1, 2005, to September 28, 2006, and from July 1, 2007, to August 2, 2007. Therefore, the veteran's claim has been broken down into those time periods. FINDINGS OF FACT 1. For the period from May 15, 2002, to December 9, 2003, the veteran's service connected right knee disability was manifested by pain, minimal limitation of motion, and slight instability. 2. For the period from February 1, 2004, to April 13, 2005, the veteran's service connected right knee disability was manifested by pain, minimal limitation of motion, and no findings of instability. 3. For the period from June 1, 2005, to September 28, 2006, the veteran's service connected right knee disability was manifested by pain, normal range of motion, and no findings of instability. 4. For the period from July 1, 2007, to August 2, 2007, the veteran's service connected right knee disability was manifested by pain; the veteran was also confined to a wheelchair during this period. CONCLUSION OF LAW 1. For the period from May 15, 2002, to December 9, 2003, the criteria for a higher evaluation for the veteran's service connected right knee disability have not been met. 38 C.F.R. Part 4, §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2007). 2. For the period from February 1, 2004, to April 13, 2005, the criteria for a higher evaluation for the veteran's service connected right knee disability have not been met. 38 C.F.R. Part 4, §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2007). 3. For the period from June 1, 2005, to September 28, 2006, the criteria for a higher evaluation for the veteran's service connected right knee disability have not been met. 38 C.F.R. Part 4, §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2007). 4. Resolving all doubt in the veteran's favor, for the period from July 1, 2007, to August 2, 2007, the criteria for a 100 percent evaluation for the veteran's service connected right knee disability have been met. 38 C.F.R. Part 4, §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5257, 5260, 5261 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ), and it applies to each of the five elements of the claim, including notice that a disability rating and an effective date for an award of benefits will be assigned if service connection is established. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). That said, in May 2002, January 2004, October 2005, May 2006, and September 2006, the agency of original jurisdiction (AOJ) sent letters to the veteran providing notice of the disability rating and effective date regulations, in accord with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No prejudice has been alleged with the timing deficiency, and none is apparent from the record. The veteran was informed of the change in law, subsequent to its enactment, numerous times during the course of this appeal. The VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records and providing multiple VA examinations. Consequently, the duty to notify and assist has been satisfied. Historically, the Board notes that the veteran was granted service connection for a right knee disability by a June 1982 rating decision. That decision was based on service medical records which indicated that the veteran injured both his knees in service when he fell aboard ship, and on the report of a VA examination which indicated that the veteran complained of right knee pain. The veteran's evaluation was continued several times subsequent to this. In May 2002, the veteran filed a claim for an increased rating for this disability. The veteran was continued at a 10 percent evaluation but during this appeal was granted an additional 10 percent disability rating for instability. The veteran continues to disagree with the level of disability assigned. Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities, which is based, as far as is practical, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the veteran's entire medical history and circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In cases 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (2007). The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14 (2007). The Board notes that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In addition, the Board notes that the intent of the rating 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. 38 C.F.R. § 4.59 (2007). The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a (2007). For VA purposes, normal extension and flexion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II (2007). With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45 (2007). For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. The veteran's right knee disability is currently rated as 10 percent disabling under Diagnostic Code 5010, for traumatic arthritis, with a separate 10 percent evaluation for instability, under Diagnostic Code 5257. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5010, traumatic arthritis, directs that the evaluation of arthritis be conducted under Diagnostic Code 5003, which states that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5010. In VAOPGCPREC 23-97, the General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257, and that evaluation of a knee disability under both of these codes would not amount to pyramiding under 38 C.F.R. § 4.14 (2007). VAOPGCPREC 23- 97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate finding must be based on additional disability. In VAOPGCPREC 9-98 (1998), the VA General Counsel further explained that, when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. In VAOPGCPREC 9-04, the General Counsel held that separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2007). Specifically, where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. Diagnostic Code 5260 provides for the evaluation of limitation of flexion of the knee. A 10 percent rating is warranted when it is limited to 45 degrees and a 20 percent rating is warranted when it is limited to 30 degrees. A 30 percent rating contemplates limitation to 15 degrees. Diagnostic Code 5261 provides for the evaluation of limitation of extension of the knee. A 0 percent rating is warranted when leg extension is limited to 5 degrees. A 10 percent rating is warranted when it is limited to 10 degrees, and a 20 percent rating is warranted when it is limited to 15 degrees. Extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and a 50 percent evaluation contemplates extension limited to 45 degrees. The veteran is also in receipt of a 10 percent evaluation under 5257 for other impairment of the knee. Under this code, for other impairment of the knee, recurrent subluxation or lateral instability, knee impairment with slight recurrent subluxation or lateral instability is assigned a 10 percent rating. A 20 percent rating is assigned if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is assigned if there is severe recurrent subluxation or lateral instability. For the period from May 15, 2002, to December 9, 2003, the Board finds that the criteria for a higher evaluation, for the veteran's service connected right knee disability, have not been met. In order to warrant a higher evaluation, the veteran would have to be found to have limitation of flexion to 30 degrees or less, limitation of extension to 15 degrees or less, or some combination of limitation of flexion and extension sufficient to combine to a rating in excess or 10 percent, or at least moderate recurrent subluxation or instability. Reviewing the evidence of record, a late May 2002 report of private outpatient treatment noted that the veteran had a range of motion of 135 degrees, considered normal. The veteran was seen again in July 2002 with continuing complaints of knee pain, and was again found to have a full range of motion. A July 2002 report of VA examination noted that the veteran reported chronic pain in the right knee, with a lot of swelling, as well as problems with the right knee giving way. Examination showed 0 to 125 degrees of motion of the right knee, with pain on motion with painful patellofemoral pop. There was no swelling. He had tenderness to palpation about the patellofemoral joint as well as over the lateral and medial joint lines. He had 1-2+ laxity on Lachman's testing with a firm endpoint. Collateral ligaments were stable. The veteran was diagnosed with chronic right knee pain with a history of chondromalacia patella per records, status post arthroscopy, and probable chronic anterior cruciate ligament insufficiency. An August 2002 report of MRI of the right knee noted a tear of the posterior horn of the medial meniscus. A January 2003 report of private outpatient treatment indicated that the veteran's right knee had a normal range of motion. An October 2003 report of private examination indicated that the veteran's right knee range of motion was from 0 to 140 degrees. There was no deformity, and no swelling on the right knee. Both patellas tracked normally. His ligaments were stable. On a December 8, 2003 report of private examination (just prior to the veteran's December 9, 2003 surgery), he was found to have a right knee range of motion from 0 to 140 degrees. There was no deformity, and no swelling on the right knee. Both patellas tracked normally. His ligaments were stable. Thus, reviewing the evidence for this period, the veteran was at all times found to have a normal or nearly normal range of motion, insufficient to warrant even a noncompensable rating, such that a higher rating would not be warranted under the relevant codes governing limitation of motion. While the veteran was found to have 1-2+ laxity on Lachman's testing during a July 2002 VA examination report, his collateral ligaments were noted to be stable; furthermore, his ligaments were noted to be stable on October 2003 and December 2003 examination reports. Therefore, the Board finds that the veteran's instability is no more than slight, such that the criteria for a higher evaluation under instability or subluxation have also not been met. As the criteria for a higher evaluation for the veteran's service connected right knee disability during this period have not been met, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for this period. For the period from February 1, 2004, to April 13, 2005, the Board finds that the criteria for a higher evaluation, for the veteran's service connected right knee disability, have not been met. In order to warrant a higher evaluation, the veteran would have to be found to have limitation of flexion to 30 degrees or less, limitation of extension to 15 degrees or less, or some combination of limitation of flexion and extension sufficient to combine to a rating in excess or 10 percent, or at least moderate recurrent subluxation or instability. Reviewing the evidence of record, the veteran received a VA examination in early February 2004. At that time, the veteran reported right knee pain, as well as problems with occasional painful popping and episodes of locking, and instability. His range of motion was extension of 0 degrees, and flexion of 135 degrees. He had no instability to varus or valgus stress. There were negative anterior and posterior drawer signs, and negative Lachman's testing. He had some mild pain with McMurray's testing. The patella tracked normally within the trochlea bilaterally. He had some mild tenderness to palpation under the medial and lateral facets of his patella. He had mild crepitus in his patellofemoral joint. He had no abnormal subluxation mediolaterally. He did have a positive patellar grind test. Bilaterally, he showed no joint effusions. His motor and sensory exam was normal throughout. Pulses were palpable. He was diagnosed with a meniscal tear of the right lower extremity. A late February 2004 report of private outpatient treatment noted that the veteran was doing well after his December 2003 surgery. His right knee range of motion was 0 to 140 degrees with no effusion and no local heat. The ligaments were not unstable to collateral ligament stress. The Lachman's test was negative. The McMurray's test showed no irregularity. Patella tracking was midline and there was no pain on patella compression. The patellar tendon at the lower pole was not tender. There was no joint line tenderness. There was no per anserine tenderness. The anterior drawer signs were negative. A May 2004 report of private examination noted that the veteran complained of constant right knee pain. The right knee flexion was 0 to 110 degrees sitting or supine, but squatting to 140 degrees. There was no effusion or local heat. The ligaments were not unstable to collateral ligament stress. The Lachman's test was negative. The McMurray's examination showed no irregularity. Patella tracking was midline and there was no pain on patella compression. The patella tendon at the lower pole was not tender. There was mild diffuse joint line tenderness. There was no pes anserine tenderness. The anterior drawers sign was negative. Thus, for this period, the veteran's extension was normal, and the veteran's flexion was never less than 110 degrees; neither of these findings warrants an evaluation in excess of 10 percent; similarly, during this period, the veteran was never found to have any subluxation or instability, such that a higher rating would be warranted under Diagnostic Code 5257. As the criteria for a higher evaluation for the veteran's service connected right knee disability during this period have not been met, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for this period. For the period from June 1, 2005, to September 28, 2006, the Board finds that the criteria for a higher evaluation, for the veteran's service connected right knee disability, have not been met. In order to warrant a higher evaluation, the veteran would have to be found to have limitation of flexion to 30 degrees or less, limitation of extension to 15 degrees or less, or some combination of limitation of flexion and extension sufficient to combine to a rating in excess or 10 percent, or at least moderate recurrent subluxation or instability. Reviewing the evidence of record, a November 2005 MRI of the right knee showed a chronic tear of the posterior horn of the medial meniscus, interval development of grade I-IV chondromalacia of the medial joint compartment, and trace effusion. A January 2006 report of VA outpatient treatment indicated that the veteran had no swelling, erythema, or effusion of the right knee. There were complaints of medial pain with varus, but not valgus stress. There was no joint laxity noted, and the veteran had negative anterior and posterior drawer signs, as well as a negative McMurray's test. He had tenderness to palpation over the patella tendon, and medial joint line tenderness. He had a positive patella grind, but full range of motion, with crepitus. The veteran was seen multiple times during January 2006 for medication injections, with similar findings pertaining to the veteran's right knee, as above. A January 2006 report of MRI noted hypertrophic changes at the tibial tuberosity. There was also a chronic oblique tear of the posterior horn of the medial meniscus, and a vertical tear of the anterior horn of the lateral meniscus. There was also focal partial thickness chondromalacia medial compartment and both facets of patella, and trace effusion. Thus the evidence for this period shows a completely normal range of motion, and no findings of instability; as such, the criteria for a higher evaluation under the relevant codes governing limitation of motion or instability have not been met. As the criteria for a higher evaluation for the veteran's service connected right knee disability during this period have not been met, the Board finds that the preponderance of the evidence of record is against a grant of increased rating for this period. For all of the above periods of time, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied for those periods. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). For the period from July 1, 2007, to August 2, 2007, resolving all doubt in favor of the veteran, the Board finds that the veteran would be entitled to a 100 percent rating for this period. In this regard, July 2007 reports of VA outpatient treatment indicate that the veteran reported continuing pain in his right knee. Records in June 2007, just prior to this period, show that the veteran was confined to a wheelchair, and received treatment multiple times in this period for residuals of his right unicondylar knee arthroplasty, which took place in September 2006, to include treatment for residual infection. Thus, while there is not much evidence of record for this month long period, as the veteran was confined to a wheelchair during this time, and as he received a 100 percent rating for 10 months prior to this period, and a year subsequent to this period, and considering the veteran's incapacity due to residual infection, the Board will resolve all doubt in favor of the veteran and grant him a 100 percent evaluation for this period. ORDER For the period from May 15, 2002, to December 9, 2003, the criteria for a higher evaluation for the veteran's service connected right knee disability have not been met. For the period from February 1, 2004, to April 13, 2005, the criteria for a higher evaluation for the veteran's service connected right knee disability have not been met. For the period from June 1, 2005, to September 28, 2006, the criteria for a higher evaluation for the veteran's service connected right knee disability have not been met. For the period from July 1, 2007, to August 2, 2007, resolving all doubt in the veteran's favor, the criteria for a 100 percent evaluation for the veteran's service connected right knee disability have been met. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs