Citation Nr: 1044153 Decision Date: 11/23/10 Archive Date: 12/01/10 DOCKET NO. 09-09 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for service-connected capsulitis of the right knee with postoperative degenerative arthritis. 2. Entitlement to a disability rating greater than 10 percent for service-connected capsulitis of the left knee with postoperative degenerative arthritis. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran had active service from May 1985 to May 2005. In April 2010, the Board of Veterans' Appeals (Board) remanded the issues on appeal to the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO) to obtain a VA orthopedic evaluation. When this case was before the Board in August 2010, it was remanded for further development. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, throughout the course of the appeal, the Veteran's right knee disability has been productive of slight recurrent subluxation and lateral instability; this manifestation is ameliorated through the use of a knee brace and thus the preponderance of the evidence is against a finding of moderate recurrent subluxation or lateral instability. 2. Throughout the course of the appeal, the Veteran's right knee arthritis has been manifested by impairment other than instability that results in chronic and recurrent pain on motion, functional loss, and slight overall limitation of motion of the knee due to pain; even when pain is considered, the Veteran's right knee arthritis is not shown to result in functional loss consistent with or comparable to limitation of motion of the left leg to 30 degrees on flexion and he has full right knee extension. 3. Resolving all reasonable doubt in the Veteran's favor, throughout the course of the appeal, the Veteran's left knee disability has been productive of slight recurrent subluxation and lateral instability; this manifestation is ameliorated through the use of a knee brace and thus the preponderance of the evidence is against a finding of moderate recurrent subluxation or lateral instability. 4. Throughout the course of the appeal, the Veteran's left knee arthritis has been manifested by impairment other than instability that results in chronic and recurrent pain on motion, functional loss, and slight overall limitation of motion of the knee due to pain; even when pain is considered, the Veteran's left knee arthritis is not shown to result in functional loss consistent with or comparable to limitation of motion of the left leg to 30 degrees on flexion, and prior to June 9, 2010, the evidence shows he has full right knee extension. 5. Resovling all reasonable doubt in the Veteran's favor, effective June 9, 2010, the Veteran's left knee arthritis was manifested by limitation of left knee extension to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5257 (2010). 2. The criteria for the assignment of a separate 10 percent rating for functional loss and limitation of flexion due to right knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) 7104 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256, 5259, 5260, 5261 (2010. 3. The criteria for a rating greater than 10 percent for left knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5257 (2010). 4. The criteria for the assignment of a separate 10 percent rating for functional loss and limitation of flexion due to left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) 7104 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256, 5259, 5260, 5261 (2010). 5. The criteria for the assignment of a separate 10 percent rating for functional loss and limitation of extension due to left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107(b) 7104 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256, 5259, 5260, 5261 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code; regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations and the precedential rulings of the Court of Appeals for the Federal Circuit and the Court of Appeals for Veterans Claims (Court). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (Implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (The Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2007); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent the Veteran a letter in September 2007, prior to adjudication that informed him of the requirements to establish entitlement to an increased rating. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. No additional private medical evidence was subsequently added to the claims files. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was informed in the September 2007 letter on disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Relevant VA examinations were conducted in November 2007 and June 2010. The Board concludes that all available evidence that is pertinent to the claims has been obtained and that there is sufficient medical evidence on file on which to make a decision on the claims. The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2010). Analysis of the Claims Law and Regulations The Veteran was granted service connection for left and right knee disabilities by rating decision in March 2005; a noncompensable rating was assigned for each knee effective June 1, 2005. A claim for increase was received by VA on July 31, 2007. A November 2007 rating decision granted a 10 percent rating for each knee disability, effective July 31, 2007. The Veteran contends that the service-connected disabilities at issue are more severely disabling than is reflected by the currently assigned ratings. Because the right knee disability is not shown to manifest the symptomatology required for a higher rating under the rating schedule, and VA is obligated to only apply the applicable rating schedule to disability rating claims, the claim for a rating in excess of 10 percent for right knee disability will be denied. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2010). The percentage ratings contained in the 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 the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2010). Separate diagnostic codes identify the various disabilities. In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2010). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Nevertheless, where entitlement to compensation has already been established and an increase in the disability rating is at issue the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 (2010). 38 C.F.R. § 4.40 notes that disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the 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 may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2009). 38 C.F.R. § 4.45 provides that factors of disability involving a joint reside in reductions of its normal excursion of movements in different planes of motion and therefore, inquiry will be directed to such considerations as weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; and incoordination (impaired ability to execute skilled movements smoothly). 38 C.F.R. § 4.45 (2009). The Court has held that when a Diagnostic Code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONALRY (28TH Ed. 1994) at 86). Schedular Criteria Diagnostic Code 5003 states that degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. 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, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. . In the selection of diagnostic codes assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27 (2010). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. See Butts v. Brown, 5 Vet. App. 532 (1993). Diagnostic Code 5257 provides ratings for 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, Diagnostic Code 5257 (2010). Diagnostic Code 5258 grants a 20 percent evaluation for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 grants a 10 percent evaluation for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2010). Diagnostic Code 5260, limitation of flexion of the leg, provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees. Diagnostic Code 5261, limitation of extension, of the leg provides a non-compensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. Under Diagnostic Code 5262, a 40 percent is assigned for nonunion of the tibia and fibula with loose motion and requiring a brace; a 30 percent rating is assigned for malunion with marked knee or ankle disability and a 20 percent is assigned for moderate knee or ankle disability. Analysis The Veteran is currently assigned a 10 percent rating for his right and left knee limitation of flexion under hyphenated Diagnostic Code 5260-5010. VA treatment records for July 2007 reveal a magnetic resonance imaging (MRI) finding of a left knee medial meniscus tear. It was noted in August 2007 that the Veteran underwent left knee arthroscopy partial medial meniscectomy and chondroplasty of the patella. When examined by VA in November 2007, it was noted that the claims file was unavailable but that the medical records were reviewed. The Veteran had a history of bilateral knee surgery. He complained of right knee giving way, pain, popping, and moderate flare ups and of left knee pain, locking, effusion, and severe flare ups. There was no instability, weakness, or incoordination and no incapacitating episodes. He could walk more than 1/4 mile but less than a mile; his gait was noted to be normal. Range of motion was 0 to 130 degrees on the right and 0 to 125 degrees on the left. There was no objective evidence of pain following repetitive motion. The Veteran said that he was employed full time as a JROTC teacher. X-rays of the knees revealed mild osteoarthritic changes with mild calcific tendonitis of the right patella. The diagnoses were left status post arthroscopic medial meniscectomy, right status post arthroscopic surgery for a torn cartilage, and bilateral degenerative arthritis. It was noted that the Veteran's bilateral knee disability had a mild effect on chores and a severe effect on exercise and sports but did not have any effect on other activities of daily living. VA treatment records from June 2009 through July 2010 reveal that motor strength in January 2010 was 5/5 in all muscle groups in the upper and lower extremities and that reflexes were intact and symmetric in the knees and ankles bilaterally. When seen on March 18, 2010, there was full range of motion of the lower extremities and strength was 5/5; it was noted that there was no decrease in function of the hip, knee, or ankle. When seen in March 2010 the Veteran complained of left knee pain and locking up to three times a week. It was noted that a VA MRI of the left knee in July 2009 revealed a radial/vertical tear of the medial meniscus and moderate tricompartmental degenerative changes. The Veteran wore a knee brace and was to be referred to physical therapy. The Veteran underwent a VA orthopedic evaluation of the knees on June 9, 2010, which included review of the claims files. He complained of intermittent bilateral knee pain, worse on the left, precipitated by prolonged sitting or walking more than four blocks. He noted occasional swelling of the right knee and swelling, popping, locking and giving way of the left knee. He was working full time and missed one day every three months due to knee pain. He had not had any incapacitating episodes in the previous year. He had occasional flare ups of both knees with some limitation of motion on the left and mild restriction of activity. He walked with a limp when either of the knees was swollen. Physical examination of the knees on June 9, 2010, revealed range of motion from 10 to 115 degrees on the left, with pain beginning at 105 degrees, and from 0 to 120 degrees on the right, with pain beginning at 110 degrees. The knees were stable with negative Lachman's and drawer signs; McMurray's was positive on the left. There was no deformity, swelling, or atrophy of either leg. There was tenderness of the left knee. Repetitive motion did not produce additional functional impairment of either knee, but it was reported that occasional flare ups caused some loss of motion of the left knee. There was 2+ crepitus on the left and 1+ crepitus on the right. The diagnosis was bilateral status post arthroscopic surgery with osteoarthritis of both knees, worse on the left. VA treatment records for June 2010 reflect that the Veteran wore a left knee brace, that he could not run, that he could walk no more than three blocks at a time, and that he could only stand for 10 minutes at a time. It was noted that the Veteran's left knee was worse than his right. In VAOPGCPREC 23-97, the VA General Counsel concluded that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5010, 5257. In this case, however, there is no medical evidence of joint instability. See Owens v. Brown, 7 Vet. App. 429 (1995); Gabrielson v. Brown, 7 Vet. App. 36 (1994) (Observing that it is the Board's responsibility to evaluate the probative value of all evidence presented). The Board finds that, throughout this appeal, the medical evidence shows that in light of the Veteran's credible complaints of locking and instability, a separate 10 percent rating for both right and left knee disabilities is warranted under Diagnostic Code 5257. In reaching this determination, the Board acknowledges that some of the medical evidence is negative for objective indications of instability, but finds the Veteran's reports both competent and credible as to this manifestation of his right and left knee disabilities. In light of the absence of consistent objective evidence of instability, however, the Board finds that the manifestation is no more than slightly disabling, and thus that the preponderance of the evidence is against ratings in excess of 10 percent for each knee under Diagnostic Code 5257. In addition, the Board notes that, throughout this appeal, the Veteran has been found to have slightly limited right and left knee flexion due to his arthritis. As such, the Board finds that separate 10 percent ratings for each knee under Diagnostic Code 5260 are warranted. Because the limitation of right and left knee flexion is not less than 105 degrees, the Board finds that even considering the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, more nearly approximates the criteria for no more than separate 10 percent ratings under Diagnostic Code 5260. Effective June 9, 2010, however, the Board finds that the evidence supports a finding of a separate 10 percent rating for limitation of left knee extension under Diagnostic Code 5261. The Board further finds that, even considering the factors noted in DeLuca, 38 C.F.R. § 4.40, and 38 C.F.R. § 4.45, the preponderance of the evidence is against entitlement to an evaluation in excess of 10 percent under Diagnostic Code 5261. Because there is also no medical evidence that either knee involves ankylosis, dislocation of semilunar cartilage, or impairment of the tibia and fibula, a higher evaluation is not warranted for either knee disability during the entire appeal period under another diagnostic code for disability of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262 (2010). Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the rating criteria contemplate the discrete manifestations of the Veteran's right and left knee disabilities. His service-connected condition is now separately compensated for right and left knee instability and right and left knee limitation of flexion, and since June 9, 2010, for left knee limitation of extension. As the rating criteria are adequate to evaluate the disabilities, referral for consideration of extraschedular rating is not warranted. ORDER A separate 10 percent rating for the right knee instability is granted, subject to the law and regulations governing the payment of VA monetary benefits. A rating greater than 10 percent for the limitation of right knee flexion is denied. A separate 10 percent rating for left knee instability is granted, subject to the law and regulations governing the payment of VA monetary benefits. A rating greater than 10 percent for the limitation of left knee flexion is denied. Effective June 9, 2010, a separate 10 percent rating for post- operative left knee extension is granted, subject to the law and regulations governing the payment of VA monetary benefits. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs