Citation Nr: 1127697 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 07-01 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a right knee injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1974 to March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for residuals of a right knee injury, rated 10 percent, effective April 1, 2005. The Veteran's claims file is now in the jurisdiction of the Oakland, California RO. The case was previously before the Board in November 2009 when it was remanded for additional development. A March 2011 rating decision assigned a temporary total (convalescence) rating for the right knee disability effective from June 26, 2006 through July 31, 2006. Consequently, the matter of the rating for this period of time is not before the Board. FINDING OF FACT Throughout the appeal period, the Veteran's service-connected right knee disability has been manifested by X-ray confirmed arthritis with painful motion and evidence of slight instability; compensable limitation of flexion or extension and more than slight instability not shown. CONCLUSION OF LAW For the entire appeal period a combined 20 percent rating (based on a formulation of 10 percent under Code 5257 and 10 percent under Code 5003) is warranted for the Veteran's service-connected right knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5257, 5260, 5261 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice has served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A January 2006 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; August 2007 and March 2011 supplemental SOCs (SSOCs) readjudicated the matter after the appellant and his representative responded and further development was completed. The Veteran has had ample opportunity to respond/supplement the record; he has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran's service treatment records (STRs) and available pertinent post-service treatment records have been secured. In a December 2009 VA Form 21-4142 (Authorization and Consent to Release Information), the Veteran indicated that in 2008 he was treated by E.F.H., D.C. VA sought records of such treatment in March 2010 and February 2011; there has been no response. The Veteran was advised of the non-response, and has not responded further; he has not identified any available pertinent evidence that remains outstanding. The RO arranged for VA examinations in December 2004, July 2007, May 2010, and January 2011. The Board finds that the examinations reports and medical opinions cumulatively provide sufficient information and are adequate for rating purposes, as the examination reports reflect familiarity with the pertinent medical history, and the examination reports include all findings necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background Historically, the Veteran's STRs reflect that in January 1991 he underwent a partial medial meniscectomy and release of the medial plica. In January 1992, he underwent right knee diagnostic arthroscopy and resection of medial meniscus tear, and posterior medial meniscus; it was noted the knee had a normal ligamentum mucosum and anterior cruciate ligament (ACL). On December 2004 (pre-discharge) VA examination, indicating that the right knee suffers from the same restrictions and problems as the left knee, it was reported that squatting, kneeling, and crawling were limited. Running, jogging, and jumping were not advised, only careful walking. It was noted he could do general daily activities. Cold weather can aggravate the pain. No assistive devices were being used. He reported difficulty with his job when the pain flares up. On physical examination, the Veteran's gait was normal. Right knee range of motion was from 0 to 140 degrees, decreasing to 0 to 125 degrees during DeLuca testing. Straight leg raising tests were negative, as were drawer signs and Lachman and McMurray tests; the drawer, Lachman, and McMurray tests caused mild aggravation of right knee pain (to 4 on a scale to 10). There was no finding of swelling or inflammation, and the MCL and LCL were stable. There was also no evidence of retropatellar pain syndrome or any patellar tendinitis. X-rays revealed mild two compartment osteoarthritis. The diagnosis was right knee partial medial meniscectomy arthroscopic with residual mild degenerative joint disease (DJD) and chronic recurrent pains. Central Coast Diagnostic Radiology private treatment records include a March 2006 report noting the Veteran's complaints of right knee instability and pain. MRI revealed a complex medial meniscus tear and osteoarthritis with cartilage defects, including articular cartilage changes in the patella with fissures and subchondral bone marrow signal intensity changes in the trochlea consistent with chondromalacia. Dr. R.R. private treatment records include May 2006 reports showing complaints of right knee pain. He also reported mechanical catching and some occasional swelling. Physical examination revealed a slight antalgic gait on the right side. There was no evidence of right knee malalignment and no effusion. There was full range of motion. Findings also included some mild patellofemoral crepitus. There was medial joint line tenderness and a positive McMurray test; there was no lateral joint line tenderness. There was no evidence of ligamentous instability and no pseudo laxity. MRI revealed a questionable OCD lesion of the medial femoral condyle and mild patellofemoral disease/syndrome. The diagnoses included right knee medial meniscus tear, OCD lesion of the medial femoral condyle, patellofemoral syndrome, and trochlea medial compartment chondromalacia. Surgical intervention was recommended to alleviate his occasional mechanical symptoms secondary to his meniscus pathology. A June 26, 2006 operative report from Monterey Peninsula Surgery Center reveals the Veteran underwent the following procedures (performed by Dr. R.R.): right knee arthroscopy with partial medial meniscectomy; right knee extensive synovectomy; right knee microfracture chondroplasty of the trochlea; right knee OBI bone grafting times two, with 9mm plugs; and platelet-rich plasma autograft to promote hemostasis and tissue healing. The postoperative diagnoses were: right knee degenerative medial meniscus tear; right knee OCD lesion, medial femoral condyle; right knee patellofemoral syndrome; and right knee anterior synovitis. The ACL and PCL were intact, and the lateral meniscus was normal. A June 26, 2006 post-operative report from Dr. R.R. notes the Veteran would need crutches for 8 weeks and that he could not bear any weight on his right knee. He was instructed to use a continuous passive motion (CPM) machine for 6 to 8 hours a day for 3 weeks, removing the knee brace (ordered in July 2006) while using the CPM machine. A July 2006 private treatment record from Dr. R.R. found moderate effusion of the right knee. Range of motion was 175 degrees of extension and flexion to 75 degrees. He was instructed to continue with a home CPM machine and protective weightbearing. August 2006 private treatment records from Dr. R.R. note the Veteran's complaints of mild right knee swelling, and that he denied pain and had improving range of motion. Physical examination found mild effusion, full extension, and flexion to 90 degrees easily. He was instructed to begin formal physical therapy. Performance Physical Therapy and Sports Conditioning treatment records reveal that the Veteran began physical therapy for his right knee beginning in September 2006. September 2006 treatment records reflect complaints of a "pressure" pain in the medal aspect of the right knee, primarily with weight bearing, and findings of mild joint effusion and limited motion. October 2006 treatment records note the Veteran needed support with step-ups and mini lunges to avoid "clicking"; findings included effusion. November 2006 treatment records note the right knee was feeling better, but also that the knee continued to demonstrate instability on dynamic surfaces. See November 16, 2006 note. September 2006 private treatment records from Dr. R.R. note the Veteran was using a single crutch, but that he was improved with ambulation. Physical examination found slight crepitus, excellent patella mobility, no medial crepitus and no medial joint line tenderness. November 2006 treatment records found no effusion, full range of motion, some medial crepitus, and patellofemoral crepitus (but no pain). January 2007 treatment records note the Veteran's complaints of crepitus, but no pain or swelling. Physical examination found retropatellar crepitus, no medial joint line tenderness, no effusion, and no instability or pseudo-laxity. Range of motion revealed he lacked the last few degrees of extension. The diagnoses included patellofemoral syndrome with trochlear chondromalacia. April 2007 treatment records note the Veteran's complaints of some intermittent pain with stair climbing activities and crepitus with knee motion; he denied any swelling. Physical examination found no effusion, full range of motion, some mild medial joint line tenderness, some mild patellofemoral crepitus, no severe pseudo laxity, and no instability. He was instructed to take anti-inflammatory medication when necessary, and the possibility of interspace replacement was discussed. October 2006 right knee X-rays from Community Hospital of the Monterey Peninsula found effusion with degenerative changes in the medial compartment and patellofemoral compartment. In his January 2007 VA Form 9 (Substantive Appeal), the Veteran reported that he routinely experiences pain in his right knee when he walks, especially when he goes up and down stairs. He took ibuprofen regularly to ease the pain. He indicated he works in an office, but that he has to walk and travel periodically. On July 2007 VA examination, the Veteran complained of significant limitations of range of motion, as well as decreased ambulatory longevity, instability, and decreased strength. It was noted he wears a knee brace for support and that he has done extensive physical therapy. He reported flare-ups of knee pain 5 to 6 times per day, activity related, lasting for minutes to hours, and relieved with rest. He spends 4 to 6 hours of sitting per day for work, otherwise spending his day walking to visit other offices. He reported difficulty going up and down stairs, especially going down stairs. It was noted he is independent with all of his activities of daily living. He is limited to walking one to two blocks without use of an assistive device. He takes Motrin for pain. On physical examination, the Veteran was tender to palpation along the medial joint line, particularly anteriorly. Right knee range of motion was from 3 to 120 degrees, with a decrease in range of motion by 10 degrees with three repetitions of motion due to fatigue and pain. There was no effusion present. There was no ligamentous instability to varus and valgus stress testing, and negative anterior drawer and Lachman testing. X-rays revealed mild joint space narrowing of the medial compartment. The diagnoses included medial compartment arthritis. The examiner noted that the Veteran had a physical examination and radiographic evidence consistent with osteoarthritis. The examiner opined that the Veteran's medical history suggests that his arthritic change is likely to progress over time. In an August 2007 VA Form 21-4138, Statement in Support of Claim, the Veteran complained of right knee lateral instability, reporting that his knee joint "slips out" erratically, and that is the reason he wears the knee brace. December 2009 correspondence from the Veteran's spouse reported after his retirement from the military, he increasingly withdrew from physical activities, and had increasing pain when walking up and down steps, getting into and out of a car, and doing work in the garden. Since the surgery in June 2006, she reported his right knee has gotten worse, reporting that he limps noticeably and regularly. He also has to take breaks when the pain is unbearable, and complains of a throbbing pain or aching in his bones whenever he rests his knees or ankles. In December 2009 correspondence, the Veteran reported that his right knee disability has caused increased pain and instability and greatly affects his overall mobility, including when walking, going up and down steps, and getting into and out of a car. He indicated he has taken 18 to 20 days off from work without pay over the past 18 months, and that he had never previously taken leave without pay. He reported he wears a knee brace, albeit only occasionally because it is so uncomfortable. On May 2010 VA examination, the Veteran reported that he continues to wear his right knee brace, but that it decreases his functionality. He reported he is unable to run or walk normally, and needs assistance with steps and getting into and out of cars. He complained that his knee is unstable and almost constant pain. He reported he has flare-ups, caused by activity, weightbearing, and joint instability, of unpredictable durations of time (from several seconds to an indefinite period of time). He treats the flare-ups by meditating, and taking Motrin and Bayer. He also reported his knee slips out of place at times. He indicated he exercised on the bicycle machine 3 times per week, but that it is painful for his right knee. He stated he works as a program evaluator, but that his knee (and foot) problems cause him to miss work or leave work early, indicating he misses roughly 1 day every 2 weeks over the past 18 months. He denied any prescribed bedrest during the past year. On physical examination, there was no evidence of significant swelling or effusion of the right knee. There was some discomfort to palpation around the patella and in relation to the medial joint line, particularly the medial femoral condylar ridge. Right knee range of motion was from 5 degrees extension to 108 degrees flexion, with pain throughout the range of motion. With three repetitions of movement with range of motion there was a decrease of approximately 8 to 10 degrees, due to fatigue and pain. McMurray, Lachman, and drawer tests were negative. There was mediolateral instability, opined to be moderate. X-rays revealed some joint space narrowing of the medial compartment and some evidence of osteophytes in relation to the intracondylar notch and medial femoral condyle. The diagnosis was traumatic arthritis right knee status post multiple surgeries. The examiner opined that the Veteran "has medial compartment osteoarthrosis, which in fact produces his instability and particularly in the mediolateral plane . . ." The examiner also opined that the meniscal tear repairs in January 1991, January 1992, and June 2006 evidenced pathology consistent with instability/subluxation. On January 2011 VA examination, the Veteran complained of pain in the right knee, a constant 2 to 3 (on a scale to 10) at baseline, with flare-ups to 8 to 9 (on a scale to 10). Going up stairs and getting out of cars caused flare-ups of pain. He indicated that his pain subsides with rest. He also complained of stiffness (especially in the morning), clicking, and swelling (occasionally). When he goes upstairs or slopes, his knee feels weaker, looser, and occasionally gives out. It was noted his gait was stable and that he used no assistive devices (although it was also noted he used a knee brace off and on). He indicated he is limited to walking 2 to 3 blocks before he needs to stop and rest his rest knee, and standing 5 to 10 minutes; sitting is not affected. He does stationary bike 3 times per week for 30 minutes. It was noted the Veteran is independent in his activities of daily living. He reported 20 incapacitated days over the past 12 months. On physical examination, the Veteran's gait was stable. There was no evidence of swelling or redness. There was minimal pain over the patella tendon and medial joint line (particularly in the medial femoral condyle). The right knee was ligamentously stable - McMurray, anterior posterior drawer, and Lachman's tests were negative. The examiner found no evidence of instability. The ACL and PCL were normal and intact. Range of motion was from 0 to 110 degrees, painless after 3 repetitions of motion of flexion and extension (considering pain, fatigue, weakness, and lack of endurance). Muscle strength was 5 out of 5 and deep tendon reflexes were 2 out of 4. It was noted he limps slightly favoring his right lower extremity. The diagnosis was degenerative disease of the medial compartment of the right knee status post several orthopedic surgeries. The examiner noted that the Veteran has a strong subjective feeling of right knee instability, although no instability was found on physical examination, and that this inconsistency could not be resolved without further speculation. In April 2011 correspondence, the Veteran reported he regularly uses an assistive device, to include a custom-made knee brace. He also stated that he informed the January 2011 VA examiner that he was in pain during range of motion studies. C. Legal Criteria and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's service-connected right knee disability is currently rated 10 percent under Code 5010 for traumatic arthritis. Arthritis shown by X-ray is rated based on limitation of motion of the affected part under the appropriate code for the affected joint. When there is arthritis with at least some limitation of motion, but which would be rated noncompensable under a limitation of motion code, a 10 percent rating may be assigned for each major joint. 38 C.F.R. § 4.71a, Codes 5003, 5010. Under Code 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Under Code 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. Code 5257 provides for a 10 percent rating for knee disability manifested by slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptoms. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98 (August 1998). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may e due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In a claim disagreeing with the initial rating assigned with a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The evidence reasonably reflects that throughout the appeal period the Veteran's right knee disability has been manifested by X-ray confirmed arthritis and some limitation of motion (see, e.g., July 2007 examination report). Consequently, while no examination or treatment report notes limitation of flexion to 45 degrees (so as to warrant a 10 percent rating under Code 5260) or limitation of flexion by 10 degrees (so as to warrant a 10 percent rating under Code 5261), the X-ray evidence of arthritis throughout the appeal period, considered with the Veteran's reports of pain on use (and the notation of objective observation of pain on motion on July 2007 and May 2010 VA examinations) warrants the assignment of a 10 percent (maximum) rating under Code 5003. The Board notes that pain was noted throughout range of motion on May 2010 VA examination. However, there was no evidence the pain limited motion, so as to warrant a separate rating for compensable limitation of motion. Thus, to the extent the Veteran (in April 2011 correspondence) appears to allege the January 2011 VA examination was not adequate because he did experience pain throughout the range of motion testing, and it was not noted by the examiner, there was no evidence that the pain the Veteran experienced during range of motion testing (the credibility of the Veteran's accounts the Board does not challenge) in fact limited his flexion or extension range of motion to a compensable degree. [The Board notes that the July 2007 VA examination found range of motion from 3 to 120 degrees, decreased by 10 degrees with repetition of motion. Similarly, the May 2010 VA examination found range of motion from 5 to 108 degrees, decreased by 8 to 10 degrees with repetition of motion. However, it is not clear that the notation of a decrease in range of motion is applicable to extension, such as to make extension limited to 13 degrees and 15 degrees, respectively (which would warrant 10 and 20 percent ratings under Code 5261). However, based on private treatment records from Dr. R.R. (in April 2007) that found full range of motion, and the January 2011 VA examination that found full extension, the Board finds that the preponderance of the evidence is against a finding that the Veteran's right knee disability is manifested by compensable limitation of extension.] Regarding a separate rating under Code 5257, the Board notes that there is conflicting evidence, in that the Veteran's subjective (which nevertheless cannot be discounted unless he is found not credible, and his credibility has not been challenged) reports of giving way/instability found clinical corroboration on only one examination, in May 2010. And even on that occasion, diagnostic tests for instability (drawer, McMurray, and Lachman's) were negative. The Board notes that there was a finding of a positive McMurray test in a May 2006 private treatment record from Dr. R.R.; there was no evidence of ligamentous instability and no pseudo laxity. However, the Board finds noteworthy that although physical examination did not show subluxation/instability, the Veteran has been issued a knee brace for his right knee disability since the June 2006 surgery, and the May 2010 examiner opined that the meniscal tear repairs during service and in June 2006 evidenced pathology consistent with instability/subluxation. Such evidence (together with the Veteran's lay observations and the May 2010 examination findings) reasonably supports a finding of slight (but no greater) instability, warranting the assignment of a 10 percent rating under Code 5257. To the extent the May 2010 VA examiner indicated the Veteran had moderate mediolateral instability, the Board finds such a finding is not substantiated by the record, as the reported testing for instability on the examination (i.e., drawer, McMurray, and Lachman's tests) was negative. In addition, the January 2011 VA examiner also found negative anterior posterior drawer, McMurray, and Lachman's tests for instability. Thus, the evidence reasonably supports the assignment of a 10 percent rating under Code 5257. [To the extent the Veteran appears to allege the January 2011 VA examination was not adequate because no stress tests were performed, the Board finds such allegation is contradicted by the evidence of record, as the January 2011 examiner specifically reported such testing.] Combining the 10 percent ratings, each, under Codes 5003 and 5257 results in a 20 percent combined rating for the Veteran's right knee disability. 38 C.F.R. § 4.25. The Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). The evidence does not show any manifestations/impairment of function not encompassed by the schedular criteria for the combined rating assigned. Therefore, those criteria are not inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Finally, as the Veteran is currently employed, and has not alleged unemployability due to his right knee disability, the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A (combined) 20 percent rating is granted for the Veteran's right knee disability, subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs