Citation Nr: 1300688 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-10 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for residuals of a right knee meniscal tear with degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was remanded for further development by the Board in September 2011 for additional development. That development was accomplished and the case is once again before the Board. FINDING OF FACT Throughout the rating period, the Veteran's right knee extension was not limited to 10 degrees or more nor was flexion limited to 45 degrees or less, even considering the Veteran's subjective complaints and functional impairment. CONCLUSION OF LAW The criteria for an initial disability rating for residuals of a right knee meniscal tear with degenerative joint disease in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2011), VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The appeal for a higher initial rating for a right knee disability arises from a disagreement with the initial evaluation following the grant of service connection. The Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA regarding that issue. The Board also finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes VA examination reports, private treatment records, service treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in January 2008 and October 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. The issue was remanded for further development by the Board in September 2011 to afford the Veteran with a VA examination and to obtain any outstanding treatment records. As noted above, the Veteran was afforded a VA examination in October 2011. The Appeals Management Center sent the Veteran a letter requesting that he complete the VA Form 21-4142 for each private health care provider that has treated him for his right knee condition, specifically Dr. J.J. The Veteran did not return the VA Form 21-4142 as requested to authorize VA to seek his records. The Board wishes to emphasize that, "[t]he duty to assist in the "development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). Therefore, the Board finds that a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Higher Initial Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. § 4.45 (2011). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Accordingly, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In a December 2006 rating decision, the RO awarded service connection for residuals of right knee meniscal tear with degenerative joint disease, with an initial 10 percent disability rating assigned effective June 27, 2006, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. The Veteran seeks a higher initial rating. Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. Limitation of flexion of the knee warrants a 30 percent rating for limitation to 15 degrees, a 20 percent rating for limitation to 30 degrees, a 10 percent rating for limitation to 45 degrees, and a 0 percent rating for limitation to 60 degrees. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension of the knee warrants a 50 percent rating for limitation to 45 degrees, a 40 percent rating for limitation to 30 degrees, a 30 percent rating for limitation to 20 degrees, a 20 percent rating for limitation to 15 degrees, a 10 percent rating for limitation to 10 degrees and a 0 percent rating for limitation to 5 degrees. 38 C.F.R. § 4.71a, DC 5261. The knee is considered a major joint. 38 C.F.R. § 4.45(f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). As an initial matter, the Board notes that a June 2012 rating decision assigned a separate 10 percent rating for instability of the right knee under 38 C.F.R. § 4.71a, DC 5257. The Veteran has not filed a notice of disagreement with the evaluation or effective date assigned. Accordingly, symptomatology associated with that disability is not for consideration when evaluating the Veteran's residuals of right knee meniscal tear with degenerative joint disease. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). Turning to the evidence, a private treatment record dated August 2006 showed a slight antalgic limp with moderately uncomfortable toe and heel walking, squatting, and coming to a standing position. The Veteran has crepitus with range of motion at both the patellofemoral joint and medial compartments. Additional private treatment records dated October 2006 show right knee osteoarthritis requiring injections. The Veteran was afforded a VA examination in January 2008. At that time, the Veteran complained of daily pain but no locking. He reported buckling, popping and grinding, being unable to walk more than a mile, climb, run, kneel, or lift more than 20 pounds. He walked with a limp, but had full motor strength and no instability, tenderness or warmth. The examiner noted crepitus on range of motion testing. The Veteran had extension to 0 degrees and flexion to 130 degrees with pain on the extreme of both. The examiner found no diminution on repetitive testing and no DeLuca criteria. He specifically noted no pain on range of motion or flare ups on any of the joints. The joint had no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. The Veteran was afforded another VA examination in October 2011. The Veteran reported flare ups in the knee about once per month, during which the swelling and pain cause him to limit his activities significantly. The Veteran exhibited flexion to 125 degrees with no objective evidence of painful motion and extension to 0 degrees. The examiner found no additional limitation in range of motion of the knee and lower leg following repetitive use. The Veteran does experience functional impairment due to pain, swelling, and interference with sitting, standing, and weight-bearing. The examiner indicated frequent episodes of joint pain and effusion, but no episodes of locking or dislocation. The Veteran did have the removal of semilunar cartilage with residuals of loss of meniscal cartilage resulting in severe degenerative changes in his medial compartment. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's residuals of a right knee meniscal tear with degenerative joint disease is appropriately evaluated as 10 percent disabling for the entire period of claim. The competent evidence of record demonstrates that the Veteran has always manifested full extension, and flexion limited to 120 degrees at worst. Such findings do not support even a 10 percent rating under DC 5260 or 5261, let alone a higher rating under either of those Codes. 38 C.F.R. § 4.71a. See Mitchell v. Shineski, 25 Vet. App. 32, 43 (2011) (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). The January 2008 and October 2011 examiners addressed the criteria set forth in DeLuca, and specifically noted the onset of pain and any additional limitation by degree. The examiner in 2008 noted no diminution on repetitive testing and no DeLuca criteria. He specifically noted no pain on range of motion or flare ups on any of the joints. The joint had no additional limitation by pain, fatigue, weakness, or lack of endurance following repetitive use. The VA examiner in 2011 specifically noted the degree at which pain began and those findings were considered in the analysis above. While the Veteran did report pain, the Board finds that the Veteran's complaints of pain are reflected in the range of motion findings and do not impair the Veteran's functioning to the degree required to more closely approximate a higher rating for the right knee. Mitchell, 25 Vet. App. at 43. In sum, at no time during the course of the claim is there competent evidence of flexion limited to 45 degrees or less or extension limited to 10 degrees or more, even considering complaints of pain and functional impairment, to warrant a higher evaluation under DC 5260 or 5261. See DeLuca, 8 Vet. App. 202; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). The Board acknowledges that a precedent opinion of the VA's General Counsel has held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004, 69 Fed. Reg. 59988 (2004). However, as noted above, at no time during the course of the appeal has the Veteran had flexion or extension of the right knee limited to a compensable level under DCs 5260 or 5261. Thus, entitlement to separate ratings for flexion and extension is not warranted. The Board has also considered whether there are other appropriate diagnostic codes applicable to the Veteran's service-connected residuals of a right knee meniscal tear with degenerative joint disease that could result in a higher evaluation than already assigned. However, as this disability has not been manifested by ankylosis, dislocation of semilunar cartilage, or malunion or nonunion of tibia and fibula, Diagnostic Codes 5256, 5258, and 5262 do not apply. 38 C.F.R. § 4.71a (2012). The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his residuals of a right knee meniscal tear with degenerative joint disease. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for residuals of a right knee meniscal tear with degenerative joint disease. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. Indeed, the Veteran's disability is rated based on his complaints of pain and functional impairment, as his range of motion does not support even a compensable rating under DCs 5260 and 5261. Moreover, he is also separately rated for other symptomatology attributable to his knee. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an initial evaluation in excess of 10 percent for residuals of a right knee meniscal tear with degenerative joint disease is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs