Citation Nr: 1121663 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 05-37 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia from December 12, 2004 to April 23, 2009. 2. Entitlement to a rating in excess of 20 percent prior to April 5, 2005, and in excess of 10 percent from April 5, 2005 to April 23, 2009 for right knee instability. 3. Entitlement to a rating in excess of 30 percent for right total knee replacement from June 1, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from June 1986 to September 1992; however, the Veteran's DD-214 also notes prior active service of 13 years. The appeal comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont, which, in pertinent part, decreased the Veteran's disability rating for right knee recurrent subluxation or instability from 20 percent to 10 percent, and granted service connection for right knee chondromalacia with an evaluation of 10 percent, each effective the date of the increased rating claim, December 15, 2004. The Veteran testified during a hearing before a Decision Review Officer (DRO) in December 2005; a transcript of that hearing is of record. In October 2009, the Board remanded this matter to the RO to afford due process and for other development. Following its completion of the Board's requested actions, the RO assigned a temporary total disability rating for right total knee replacement from April 23, 2009 to June 1, 2010, and assigned a 30 percent disability rating from June 1, 2010. The June 2010 RO decision recategorized the Veteran's previous separate ratings for right knee instability and chondromalacia into the single 30 percent rating for status post-right knee replacement. The claims file was then returned to the Board for further appellate consideration. The Board notes that June 2010 RO decision also granted service connection for a left knee disorder and the issue is no longer on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. From December 12, 2004 to April 23, 2009, the Veteran's right knee chondromalacia was manifested by, at worst, flexion to 55 degrees, and extension to six degrees. 3. Prior to April 5, 2005, the Veteran's right knee instability was manifested by complaints of pain. 4. From April 5, 2005 to April 23, 2009, the Veteran's right knee instability was manifested by a subjective complaint of instability. 5. For the period beginning on June 1, 2010, the service-connected right knee disability is not shown to be productive of chronic residuals consisting of severe painful motion or weakness following implantation of the prosthesis. CONCLUSIONS OF LAW 1. For the time from December 12, 2004 to April 23, 2009, the criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 5014 (2010). 2. The criteria for the assignment of evaluations in excess of 20 percent prior to April 5, 2005, and in excess of 10 percent from April 5, 2005 to April 23, 2009 for right knee instability have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010). 3. For the period beginning on June 1, 2010, the criteria for the assignment of an evaluation in excess of 30 percent for the service-connected total right knee replacement have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.71a, Diagnostic Code 5055 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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 (the Court) have been fulfilled. In this case, the Veteran's claim for an increased rating for a right knee disorder was received in December 2004. Thereafter, he was notified of the general provisions of the VCAA in correspondence dated in December 2004, October 2008, and May 2009. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in June 2010. 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); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). During the pendency of this appeal, the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in April 2006. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records and VA treatment records have been obtained and associated with his claims file. The Veteran has also been provided VA examinations dated in April 2005, January 2009, and March 2010 to determine the nature severity of his right knee disability. Furthermore, the Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Laws and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2010) (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2010). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2009). In addition, where there is a question as to which of two disability evaluations should 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. See 38 C.F.R. § 4.7 (2010). The Board further acknowledges 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. See 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. The United States Court of Appeals for Veterans Claims (the Court) held that in evaluating a service-connected disability, functional loss due to pain under 38 C.F.R. § 4.40 (1997) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1997) must be considered. The Court also held that, when a Diagnostic Code does not subsume 38 C.F.R. §§ 4.40 and 4.45, those provisions are for consideration, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. See DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). Based on a review of the claims file, a rating action in March 1993 granted service connection for a right knee disability. The knee was evaluated pursuant to Diagnostic Code 5014 from December 15, 2004 to April 23, 2009; Diagnostic Codes 5003-5257 prior to April 2009; and Diagnostic Code 5055 from April 23, 2009. 5003 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 Code 5003 (2010). 5055 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 (2010). 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010). 5260 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 (2010). 5261 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 Code 5261 (2010). 38 C.F.R. § 4.71, Plate 2 (2010). Factual Background The Veteran was granted service connection in a March 1993 RO decision based upon service treatment records indicating an in-service injury and multiple complaints of right knee pain. In an October 2003 VA progress note the Veteran complained of pain in the right groin. The examiner noted that the Veteran has a history of known problems with the right knee, as seen previously in a February 2002 X-ray report which showed degenerative changes and medial displacement of the femur. Upon physical examination, the examiner noted tenderness to palpation along medial joint line of the knee and along patellofemoral area of the knee. The diagnosis was muscle strain as a consequence of compensation for degenerative joint disease (DJD) at knee. In a January 2004 VA orthopedic note, the examiner noted that the Veteran apparently had an occurrence in September where he developed sharp pain extending from his right groin down the medial aspect of his right thigh to his knee. He stated this had resolved. Upon examination, the examiner noted range of motion of the right knee was from zero degrees to 125 degrees. He had some crepitation over the patellae. An X-ray report of the right knee showed some moderate degenerative changed, moderating narrowing medially, which unchanged from the prior films. The diagnosis was degenerative arthritis of the right knee. During an April 2005 VA examination, the Veteran complained of worsening right knee pain accompanied by weakness, stiffness, instability, and lack of endurance. He denied heat or redness. He stated his pain is also accompanied by popping. He stated walking over fifty yards or sitting over one-half hour will cause his pain to worsen. He stated he has flare-ups that occur at least once per month, are moderate to severe and last anywhere from less than a day to a day or two and result primarily in pain. He occasionally will use a cane if his pain is bad enough, but he denied any surgery on the joint. He was not working and had just finished school for computer programming. He stated his knee pain was aggravated by sitting and his prior occupation was an appliance repair person and was too hard on his knee. He complained of pain with occasional house and yard work. Upon examination, the examiner noted the Veteran was slightly genu varus. He walked with a slightly antalgic gait, favoring his right knee. His right knee had range of motion findings of flexion to 110 degrees and extension to zero degrees with pain. With repetitive motion, his range of motion decreased to zero degrees extension and 90 degrees flexion, primarily due to pain. His knee was without any instability. The diagnosis was worsening right knee chondromalacia with medial meniscal tear and degenerative arthritis. During a December 2005 RO hearing, the Veteran reported his knee was constantly painful. He reported his knee has given out on him, but since he's been retired, it really has not locked. In VA progress notes date from May 2006 to April 2009, the Veteran had multiple complaints of intermittent right knee pain. There were no complaints of instability. Range of motion findings dated in August 2006, March 2007, July 2007, December 2007, March 2008, October 2008 and April 2009 included flexion to 105 degrees and extension to three to six degrees. In a February 2009 note, the examiner noted extension to 100 degrees and flexion to zero degrees. It was further noted in a July 2007 VA progress note that the Veteran underwent injections in his right knee which helped considerably for approximately three months. During a January 2009 VA examination, the Veteran reported that since his last examination, his right knee pain had increased to a chronic, constant 9/10 pain with associated weakness, stiffness, swelling, instability, locking, and lack of endurance. He also had marked fatigue, but no heat or redness. Precipitating factors for flares included getting up in the morning, getting up from the toilet, driving more than two hours, and walking on throw rugs or uneven ground. He reported using a cart as a crutch while shopping and having to elevate his legs at night. He complained of difficulty sleeping due to knee pain. He also reported that he had severe flare-ups usually after activity once a month for up to two days in duration with pain being a 10/10. Additional limitation of motion during a flare-up included an inability to extend past 45 degrees or flex past 45 degrees. The examiner noted he used a cane but no corrective shoes, braces, or crutches. He was scheduled for surgery in three months. He indicated his daily activities were extremely limited and he stayed home now secondary to the knee pain. He stated he could walk at most 30 to 45 minutes before he had to sit secondary to pain. Upon physical examination, the examiner noted he was an obese white male in obvious distress with major antalgic gait, favoring the right knee. The knee was swollen with effusion at the inferior aspect around the patella. The joint was painful on motion with range of motion findings of extension to zero degrees and flexion to 55 degrees. He had severe pain with motion from extension at 35 degrees and flexion at 55 degrees. Pain was evidenced, but there was no marked fatigue, weakness, or lack of endurance or incoordination. The medial and collateral lateral ligaments were intact, as were the anterior and posterior cruciate ligaments. There was no ankylosis. An X-ray report from that time found advanced medial joint space narrowing and varus deformity and spur of the medial tibial spine and spurs of the superior and inferior aspect of the patella. The diagnosis was degenerative arthritis of the right knee, progressive since last examination. In April 2009, the Veteran underwent a total right knee arthroplasty. In a July and December 2009 VA follow-ups, the Veteran denied any pain in the right knee. The examiner noted his gait was good, he had minimal swelling in the lower extremity, no effusion, and active motion was from zero to 115 degrees. Stability was satisfactory. During a February 2010 VA orthopedic consultation, the examiner noted a very mild antalgic gait, no sign of deep vein thrombosis, well healed knee wound, no signs of infection, no effusion, and active range of motion approximately zero to 115 degrees. In a March 2010 VA progress note, the examiner noted range of motion from zero to 105 degrees with collateral ligaments stable on stress testing. During a March 2010 VA examination, the Veteran reported he was unable to kneel since surgery due to pain with pressure. The Veteran also complained of instability, pain, stiffness, incoordination, decreased speed of joint motion, swelling and tenderness, and denied giving way, episodes of dislocation or subluxation, locking episodes and flare-ups. The Veteran reported he was unable to stand for more than a few minutes, unable to walk more than a few yards, that he used a cane intermittently, but frequently, and that he used a scooter for prolonged standing/walking. Upon physical examination, the examiner noted the Veteran had an antalgic gait, deformity of the right knee with no crepitation, grinding, or abnormalities. Active range of motion was flexion to 105 degrees with extension limited by 5 degrees. There was no joint ankylosis. The Veteran reported right knee pain with active motion for flexion at 65 degrees and for extension at 10 degrees. The Veteran reported he worked in appliance repair until his retirement in 2002 and at that time he was eligible by age or duration of work and due to medical problems. The diagnosis was degenerative joint disease of the right knee status post total knee replacement. The disability had significant effects on the Veteran's usual occupation and included decreased mobility. The examiner noted problems with lifting, carrying, weakness or fatigue, decreased strength in the lower extremity and pain. The examiner noted moderate to severe problems on the usual daily activities. Analysis Increased rating for Chondromalacia After a review of the evidence of record, the Board finds that the evidence does not support the assignment of a rating in excess of 10 percent for a right knee disability for the time period prior to April 23, 2009. In this case, no other diagnostic code provides a basis for assignment of a higher rating for the right knee. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263; however, several of these diagnostic codes are simply not applicable to the Veteran's service-connected right knee disability. It is neither contended nor shown that the Veteran's service-connected left knee disability involves ankylosis (Diagnostic Code 5256), dislocated semilunar cartilage (Diagnostic Code 5258), impairment of the tibia and fibula (malunion or nonunion) (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Regarding limited extension, the Board notes that prior to the April 2009 surgery, the right knee had extension to, at worst, six degrees. VA progress notes dated from October 2003 to April 2009 consistently found active right flexion to at least 105 degrees. The Board notes that in a January 2009 VA examination, the examiner found limitation of flexion to 55 degrees. These findings do not meet the criteria for a 20 percent rating for limited flexion or limited extension under Diagnostic Codes 5260 and 5261 (which require flexion limited to 30 degrees and extension limited to 15 degrees). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Given the objective medical findings of slight right knee flexion and the Veteran's subjective complaints of pain, the RO appropriately assigned a 10 percent rating for the Veteran's right knee disability for the time period prior to April 23, 2009. See 38 C.F.R. § 4.71a, Diagnostic Code 5014. The 10 percent rating takes into account functional loss due to pain and other factors, and, given the minimal objective findings, no higher rating on this basis is warranted. See 38 C.F.R. §§ 4.40,4.45 and DeLuca. Even considering pain and other factors, the evidence simply does not support assignment of a higher rating under Diagnostic Code 5014 or any other Diagnostic Code. Increased Rating for Instability The Veteran was assigned a 20 percent disability rating for instability of the right knee prior to April 2005 and a 10 percent disability rating from April 2005 to April 2009. Although there are no complaints of instability from the date of claim to April 2005, the Board will not disturb the Veteran's assigned rating. For the time period from April 5, 2005 to April 23, 2009, the right knee disability as manifested by a single subjective complaint of instability during the April 2005 VA examination and no objective findings of instability. Due to these minimal findings, the Veteran right knee disability more accurately assigned a 10 percent rating under Diagnostic Code 5257 for slight subluxation or lateral instability. Increased Rating for Right Knee Replacement As noted above, following the total knee replacement surgery in April 2009, his right knee disability was re-evaluated under Diagnostic Code 5055, the criteria for evaluating knee replacement (prosthesis). 38 C.F.R. § 4.71a. Under Diagnostic Code 5055, a 30 percent evaluation is the minimum rating. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to diagnostic codes 5256, 5261 or 5262. A 60 percent evaluation is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. A total evaluation is assigned for 1 year following implantation of the prosthesis. Given its review of the medical evidence of record during this time period, the Board finds that a rating in excess of 30 percent is not warranted. In this regard, the Veteran does not have intermediate degrees of residual disability that would support a higher rating under diagnostic codes 5256, 5261 or 5262. He does not have ankylosis of the right knee, extension limited to 30 degrees or nonunion of the tibia and fibula with loose motion requiring a brace. The Board is aware that the objective findings of the March 2010 VA examination showed evidence of some painful motion (flexion to 105 degrees with extension limited by 5 degrees); however, these symptoms do not rise to a level of severe painful motion or weakness, as is required for the 60 percent rating. For these reasons, the Board finds that an evaluation in excess of 30 percent for the right knee disability status post total knee replacement is not warranted for the period beginning June 1, 2010. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed regarding the right knee, and which are within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. The Board finds that the disability is not so unusual or exceptional as to render impractical the application of the regular schedular standards at any time during the pendency of the evaluation period. 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the Veteran's right knee disability has not necessitated frequent periods of hospitalization and there is no objective evidence that it resulted in marked interference with his employment. In this regard, the Veteran is presently retired. The facts of this case do not present such an extraordinary disability picture such that the Board is required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia from December 12, 2004 to April 23, 2009, is denied. Entitlement to a rating in excess of 20 percent prior to April 5, 2005, and for a rating in excess of 10 percent from April 5, 2005 to April 23, 2009 for right knee instability, is denied. Entitlement to a rating in excess of 30 percent for right total knee replacement from June 1, 2010, is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs