Citation Nr: 1301462 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 08-23 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for left knee strain prior to December 6, 2010. 2. Entitlement to an evaluation in excess of 30 percent for left knee strain from December 6, 2010. ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active service from February 1989 to November 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating action of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for the residuals of left knee meniscal and anterior cruciate ligament repair at 10 percent disabling and for a noncompensable left knee scar (both effective September 13, 2006). Service connection for "right knee strain" was denied. In July 2010, the Veteran testified before the undersigned at a Board hearing. A transcript of the hearing has been associated with the file. In a November 2010 decision of the Board, entitlement to a compensable rating for a left knee scar was denied. The issues of entitlement to a right knee disability and entitlement to an initial evaluation in excess of 10 percent for left knee strain were remanded for additional development. Subsequent to the November 2010 remand, entitlement to service connection for a right knee disability was granted in a December 2011 rating decision. This represents a complete grant of the benefit sought on appeal, and the claim for service connection for the right knee is no longer before the Board. The December 2011 rating decision also increased the evaluation for the Veteran's left knee disability to 30 percent, effective from December 6, 2010. A Veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the Veteran's claim for an increased evaluation for his left knee disability remains on appeal to the Board. In March 2012, the Board remanded the appeal for the agency of original jurisdiction (AOJ) to readjudicate the claim in light of newly received private medical records. A review of the Virtual VA paperless claims processing system shows that VA treatment records from December 2010 to November 2011 are of record. The AOJ considered these updated VA treatment records in the October 2012 Supplemental Statement of the Case. FINDINGS OF FACT 1. For the period prior to December 6, 2010, the left knee strain is manifested by limitation of flexion to no more than 60 degrees, normal extension, and mild subluxation or instability. 2. For the period prior to December 6, 2010, the Veteran has degenerative joint disease of the left knee and resolving all doubt in the Veteran's favor has demonstrated painful motion of the left knee. 3. For the period beginning December 6, 2010, the left knee strain is manifested by limitation of flexion to no more than 60 degrees, limitation of extension to 20 degrees, and no subluxation or instability. CONCLUSIONS OF LAW 1. For the period prior to December 6, 2010, the criteria for a schedular rating in excess of 10 percent for left knee strain on the basis of subluxation or instability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. For the period prior to December 6, 2010, the criteria for a separate schedular rating of 10 percent, but no higher, for left knee strain on the basis of painful motion are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 3. For the period beginning December 6, 2010, the criteria for a separate compensable schedular rating for left knee strain on the basis of subluxation or instability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5257 (2012). 4. For the period beginning December 6, 2010, the criteria for a schedular rating in excess of 30 percent for left knee strain on the basis of limitation of motion are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The issues on appeal arise from disagreement with the initial ratings following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated. Additional VCAA 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). Nevertheless, the record indicates that the Veteran was provided with adequate VCAA notice in October 2006, November 2010, and November 2011. Specifically, the RO notified the Veteran of information and evidence necessary to substantiate his service connection claim. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. The duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records and VA treatment records have been obtained. The Veteran submitted records from his private physician. He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners. There is no indication that his service connected left knee disability has increased in severity since his most recent VA examination. There is no indication that there is any relevant evidence outstanding in the claim. The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the instructions in the November 2010 and March 2012 Board Remands. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence includes an updated December 2010 VA knee examination report, Philadelphia VAMC records, and issuance of an October 2012 supplemental statement of case reflecting consideration of newly submitted private medical records. The Board is satisfied that there was substantial compliance with its remand orders. Id.; See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2010, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims recently held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the July 2010 BVA hearing, the undersigned Veterans Law Judge identified the issue on appeal. Information was also obtained to clarify the Veteran's arguments. He stated in pertinent part that his left knee disability had increased in severity and that he started receiving medical treatment at the VA Medical Center (VAMC) in Philadelphia. The appeal was remanded to obtain Philadelphia VAMC treatment records and furnish an updated VA knee examination. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Laws and regulations 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. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is also deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion. See 38 C.F.R. §§ 4.40, 4.59, 4.71a, Diagnostic Code 5003; VAOPGCPREC 09-98 (August 14, 1998), citing Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In addition to the limitation of motion diagnostic criteria, the rating schedule also includes ratings for subluxation or lateral instability of the knee. A 10 percent rating applies for slight recurrent subluxation or lateral instability of the knee, 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, Diagnostic Code 5257. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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 symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September, 2004). Factual background For historical purposes, the Veteran tore both his left meniscal (MCL) and anterior cruciate (ACL) ligaments in service. He had two surgeries to repair them. In the May 2007 rating decision, the RO granted service connection for residuals of left knee MCL and ACL repair and assigned a 10 percent rating pursuant to Diagnostic Code 5257, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. In a December 2011 rating action, the RO reevaluated the Veteran's left knee disability and assigned a 30 percent rating pursuant to DC 5261, limitation of extension, effective December 6, 2010. In April 2007, the Veteran underwent a VA knee examination. The examiner observed that he did not use assistive aids for walking. With regard to joint symptoms, there was no giving way, instability, stiffness, weakness, but there was pain. The Veteran reported flare-ups three times per month that lasted approximately two days. He denied episodes of dislocation or subluxation. He had pain upon excessive walking, but denied any incapacitating episodes of knee pain. Upon clinical examination, he had left knee flexion from 0 to 130 degrees and full left knee extension. No pain or additional limitation from repetition was observed for either study. Lateral collateral and medial collateral ligaments were intact with 30 degrees of flexion and varus valgus stress. Lachman maneuver suggested laxity in the ACL and posterior cruciate ligaments. McMurray testing showed medial and lateral meniscus to be intact. The examiner diagnosed left knee MCL and ACL repair with residual pain. VA treatment records from July 2007 show that the Veteran complained about left knee pain. However, clinical examination was negative for inflammation of the left knee. In his July 2007 notice of disagreement and August 2008 substantive appeal, the Veteran reported that he continued to have severe left knee pain and wore braces on both knees for stabilization. He also stated he had missed work due to severe knee pain. The Veteran had an annual physical examination in September 2008. He complained about chronic bilateral knee pain. Clinical examination of the extremities was negative for edema and inflammation in either knee. He had an unspecified limited range of motion for left knee flexion. The assessment was degenerative joint disease in both knees. The examiner noted that the Veteran wore braces on both knees. At the July 2010 hearing, the Veteran reported using prescription medication for pain relief. He believed his left knee disability had recently increased in severity. Private medical records, dated in August 2010, show that the Veteran reported a history of developing postoperative left knee pain. He described most of his knee pain as involving weight bearing activities. He had difficulty squatting, kneeling, and climbing stairs. He had significant crepitus and stiffness in his left knee. Clinical examination showed the Veteran to present overweight and exhibit a slight limp. He had good peripheral pulses without regional adenopathy. Deep tendon reflexes were physiologic and he had normal sensation in all dermatomes. Full strength movement was observed. Range of motion of left knee flexion was from 0 to 125 degrees. The examiner noted varus deformity, crepitus and joint line tenderness towards the medial joint line. Lachman, anterior drawer, and posterior drawer testing were all negative. Stress testing for varus and valgus deformity was also negative. Patellar or quadriceps tendon pain was absent. X-rays showed severe degenerative arthritis, particularly in the left knee medial compartment. The examiner diagnosed severe left knee arthritis and recommended a left medial unloader brace. He also recommended steroid injections for the left knee, which the Veteran declined for the time being. VA reexamined the Veteran for his left knee disability on December 6, 2010. He reported having moderate constant pain, stiffness, and weakness in his left knee. He presented with a mild antalgic gait and utilized a left knee brace. He denied use of walkers, crutches, wheelchairs, or canes. He had difficulty standing and walking for more than 45 minutes, climbing steps, and squatting due to knee pain. Clinical examination showed that left knee extension was to 20 degrees and left knee flexion was to 90 degrees with moderate pain from 80 to 90 degrees. Repetitive motion did not elicit additional pain, weakness, fatigue, or lack of endurance. The Veteran denied flare-ups. The examiner did not find evidence of instability. Drawer testing and McMurray sign were both negative. The Veteran did not have swelling or crepitus to palpation, but exhibited moderate tenderness along the anterior medial and lateral aspect of the left knee. The examiner also assessed mild to moderate weakness and mild to moderate stiffness. He concluded that there was no deformity, instability, giving way, locking episodes, effusions, dislocation, or subluxation for either knee. He diagnosed left knee strain with restricted range of motion. He noted functional impairments of standing and walking for more than 45 minutes, climbing stairs, and squatting. VA treatment records, dated in June and November 2011, show that the Veteran continued to wear knee braces. No additional clinical findings were made for the left knee. The examiner assessed chronic knee pain on both visits. Analysis (i) Period prior to December 6, 2010 As detailed, prior to December 6, 2010, a 10 percent disability rating is currently in effect for left knee instability pursuant to Diagnostic Code 5257. The basis of this rating appears to be findings of left ACL laxity at the April 2007 VA examination. The Veteran has provided lay reports that he used a left knee brace to stabilize his knee. He does not provide further specification as to the amount and nature of any left knee instability. Private medical records from August 2010 were negative for clinical findings for left knee instability. Similarly, the December 2010 VA examination report was negative for clinical findings of left knee instability. A higher rating is not warranted pursuant to Diagnostic Code 5257 as the VA examinations and treatment records do not reflect symptoms of moderate instability or subluxation anytime prior to December 6, 2010. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has also considered a separate rating for limitation of motion prior to December 6, 2010. Esteban, 6 Vet. App. at 262; VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998); 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5260, and 5261. In this regard, the available clinical findings are limited. The April 2007 VA clinical examination shows a full range of motion without pain. However, the Veteran reported occasional flare ups of left knee pain. VA treatment records from September 2008 refer to an unspecified limitation of motion in left flexion. Private medical records from August 2010 reflect left knee flexion to 125 degrees, but it is not clear whether functional impairment was considered. Meanwhile, the December 2010 VA examination shows left knee flexion between 80 and 90 degrees and extension to 20 degrees. As the compensable rating criteria for limited motion of the flexion and extension have not been met for this period, separate ratings pursuant to Diagnostic Codes 5260 and 5261 are not warranted prior to December 6, 2010. Nonetheless, the record shows that the Veteran has severe arthritis in his left knee. See August 2010 X-ray. Resolving reasonable doubt in the Veteran's favor, the Board finds that painful left knee motion due to arthritis has been demonstrated. 38 C.F.R. §§ 3.102, 4.59, 4.71a, Diagnostic Code 5003. He has consistently reported left knee pain since filing his claim. Although the April 2007 clinical examination showed full range of left knee motion without pain, the Veteran also stated that he had flare-ups of left knee pain, which would presumably be productive of painful motion. A separate 10 percent rating for painful motion of the left knee as due to degenerative arthritis is granted prior to December 6, 2010. See id. (ii) Period beginning December 6, 2010 As detailed, a 30 percent disability rating beginning December 6, 2010 is currently in effect for reduced left knee extension pursuant to Diagnostic Code 5261. The basis of this rating is the December 2010 clinical finding of left knee extension limited to 20 degrees. There is no additional range of motion study available for comparison. However, the limitation of extension demonstrated at the December 2010 VA examination specifically fits the 30 percent rating criteria under Diagnostic Code 5261. The left knee ranges of motion demonstrated at the December 2010 VA examination do not warrant a rating in excess of 30 percent based upon limitation of left knee extension. The December 2010 clinical findings do not show a compensable limitation of flexion to support a separate additional rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260; VAOGCPREC 9-2004 (September, 2004). The Board has considered 38 C.F.R. §§ 4.40 and 4.45, addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. DeLuca, 8 Vet. App. at 206 -07. However, an increased rating for complaints about pain, excess fatigability, decreased functional ability, etc. is not warranted. As detailed, on examination in December 2010, with regard to the left knee, pain was the major functional impact. Likewise, pain had an effect on functional impairment. His functional impairment due to pain and weakness has been considered in assigning the 30 percent disability rating. While acknowledging the effects on his daily activities reflected in the VA examination reports of record, there is no basis for a higher rating based on additional functional loss due to pain, weakness, impaired endurance, fatigue, incoordination, or flare-ups. Clinical findings at the December 2010 VA examination were negative for instability or subluxation. There is no other evidence to suggest left knee instability or subluxation during the period in question. Hence, a separate rating for left knee subluxation or instability beginning December 6, 2010 is not warranted. Esteban, 6 Vet. App. at 262; VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). In summary, for the period beginning December 6, 2010, a rating in excess of 30 percent on the basis of limitation of motion and a separate rating for reduced flexion, instability, or subluxation of the left knee is denied. 38 C.F.R. §§ 3.102, 4.40, 4.71a, Diagnostic Codes 5257, 5260, 5261. Extraschedular considerations The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected left knee disability is fully contemplated by the rating criteria. There is nothing exceptional about it. The degree of disability exhibited is contemplated by the rating schedule. Thus, the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). Total disability based upon individual unemployability (TDIU) A request for a TDIU whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this instance, the record shows that the Veteran has been gainfully employed during the claims period. TDIU is not for further consideration. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 10 percent for instability and subluxation of the left knee prior to December 6, 2010 is denied. A separate initial rating of 10 percent for painful motion of the left knee prior to December 6, 2010 is granted. An initial rating in excess of 30 percent for left knee strain beginning December 6, 2010 is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs