Citation Nr: 1302906 Decision Date: 01/25/13 Archive Date: 01/31/13 DOCKET NO. 09-00 191A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating greater than 10 percent for degenerative joint disease (DJD) of the right knee both prior to March 12, 2008, and after June 30, 2008. 2. Entitlement to an initial separate rating greater than 20 percent for a right knee disability, post-operative, prior to March 12, 2008, and a separate rating greater than 10 percent for a right disability, post-operative, after June 30, 2008. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from May 2004 to April 2006, with additional service in the Army National Guard and the Army Reserve, to include periods of active duty for training (ACDUTRA) from August 1982 to February 1983 and from June 1989 to October 1989. The Veteran's active duty service included service in the Southwest Asia Theater of operations during the Persian Gulf War. This appeal is before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York in which service connection for a right knee disability was granted and an initial noncompensable rating was assigned, effective April 11, 2006 (the day after his separation from the military). During the pendency of this appeal, the Veteran was granted increased ratings, separate ratings, and temporary total ratings in connection with his right knee. Essentially, the Veteran ultimately underwent right knee surgery in March 2008. Prior to that time, the originating agency awarded the Veteran a 10 percent initial rating for his right knee DJD and a separate 10 percent rating for symptoms related to his torn medial meniscus and anterior cruciate ligament (ACL) tear. The Veteran underwent surgery on his right knee in March 2008 and the originating agency granted the Veteran a temporary total (100 percent) rating from March 12, 2008, to June 30, 2008, to cover the time of surgical convalescence. Effective July 1, 2008, the Veteran was again awarded two separate ratings: 10 percent for arthritis of the right knee with limitation of motion, and a separate 10 percent rating for symptoms related to the recurrent meniscal tear (to include instability). This claim stems from the Veteran's disagreement with the rating of his right knee. After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Aside from the temporary total evaluation assigned from March 12, 2008 to June 30, 2008, the Board finds this appeal includes any and all ratings related to his right knee disability. Past rating decisions, the statement of the case (SOC), and the supplemental statement of the cases (SSOCs) address all medical findings related to the right knee and discuss all potential disability ratings. Although the issue has been previously characterized as only including the initial 10 percent rating, the Board finds the appeal necessarily encompasses not only the initial 10 percent rating assigned for the Veteran's right knee, but also separate disability ratings assigned. The RO considered all applicable diagnostic codes in denying the Veteran's claim and, therefore, there is no prejudice of the characterization and consideration of issues here. When this case was most recently before the Board in April 2012, it was remanded for further development. The requested development having been completed, the case is once again before the Board for appellate consideration of the issues on appeal. FINDINGS OF FACT 1. From April 11, 2006, to March 11, 2008 the Veteran's right knee disability was manifested by limitation of flexion and frequent episodes of effusion; flexion was not limited to less than 45 degrees; there was no limitation of extension; and there was no lateral instability or recurrent subluxation. 2. From July 1, 2008, the Veteran's right knee disability has been manifested by limitation of flexion to not less than 45 degrees and not more than slight instability or recurrent subluxation; no limitation of extension and no episodes of locking and effusion have been present. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for degenerative joint disease of the right knee both prior to March 12, 2008, and after June 30, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2012). 2. The criteria for a higher separate rating greater than 20 percent for a right knee disability, post-operative, prior to March 12, 2008, and a higher separate rating greater than 10 percent for a right disability, post-operative, after June 30, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5257 and 5258 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter mailed in March 2007, prior to the initial adjudication of the claim. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained. VA examinations with respect to the knees were obtained in March 2007, October 2010, June 2011, and May 2012. 38 C.F.R. § 3.159(c) (4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record and the statements of the Veteran, and the examiners provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board will address the merits of the claim on appeal. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. While the Board must consider the functional impairment resulting from orthopedic disabilities, such as the Veteran's loss of motion, pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings such as Diagnostic Code 5257 (for instability or recurrent subluxation) because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. at 12 (1996). Diagnostic Code 5010 provides that traumatic arthritis will be rated as degenerative arthritis. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Ankylosis of a knee warrants a 40 percent evaluation if it is in flexion between 10 and 20 degrees or a 50 percent evaluation if it is in flexion between 20 and 45 degrees. Extremely unfavorable ankylosis of a knee at an angle of 45 degrees or more warrants a 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Flexion of the leg limited to 60 degrees warrants a noncompensable 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, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable 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, Diagnostic 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. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2012). 38 C.F.R. § 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). VA's General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic 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 has also held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September, 2004). Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of semilunar cartilage warrants a 10 percent evaluation if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. Prior to March 12, 2008 The Veteran injured his right knee while on active duty and underwent an arthroscopic surgery therein. From the time the Veteran left the military in April 2006, leading up to his second surgical procedure on March 12, 2008, the Veteran claims his right knee was "never" the same. During this time frame, the Veteran was awarded two separate ratings for his right knee: a 10 percent rating under DC 5010 for arthritis with limitation of motion; and a 20 percent rating under DCs 5027-5028 for manifestations related to his recurrent meniscus tears with pain, locking and joint effusion. Specifically, the medical evidence during this time frame indicates ongoing complaints of right knee soreness, swelling, and limited motion since his in-service 2006 arthroscopic surgery. The Veteran underwent a VA examination in March 2007 where X-rays revealed mild degenerative joint disease of the right knee with patellar chondromalacia. The Veteran complained of constant pain with limited motion, but on examination there was no evidence of deformity, malunion, nonunion, or any other joint abnormality. There was slight tenderness, but no edema, no painful motion, no weakness, and no ankylosis. It is noteworthy, at that time, the Veteran indicated he worked as a full time New York City policeman and was training for a marathon. Private treatment records from 2007, to include an October 2007 MRI, indicate evidence of small knee effusion, medial meniscus tear, and some evidence of disruption or tear of the ACL. Ligaments were otherwise found to be intact. In fact, private treatment records from 2007 leading up to the March 2008 surgery indicate differing opinions as to whether the Veteran had an ACL tear. The Veteran did complain of episodes of giving way and pain, but ligaments were found intact other than the possible tear or partial tear of the ACL. A January 2008 private record notes the physician's opinion that the Veteran did not have a torn ACL given his minimal symptoms. As of February 2008, diagnostic tests confirmed the Veteran had a large meniscus tear and at least a partial ACL tear. In addition, the Veteran had synovitis and recurrent joint effusions with episodes of giving way and pain. No private professional felt the Veteran's complaints and objective findings showed "obvious instability." Private medical records also mainly show full range of motion (from 0 degrees extension to 140 degrees flexion), but with pain at the maximal flexion. A September 2007 private treatment record indicates some limitation to 130 degrees flexion due to pain. In short, the medical evidence at this time period showed the Veteran clearly had X-ray evidence of arthritis with minimal limitation of motion. Specifically, the Veteran's range of motion was never worse than 0 degrees extension (full) to 130 degrees flexion. Limitation of motion findings were clearly not compensable under DCs 5260 or 5261 and the evidence does not show episodes of incapacitating exacerbations. For these reasons, the 10 percent rating assigned under DC 5010 is proper. Functional loss was considered under the Deluca, 8 Vet. App. 202 provisions, but medical evidence from this time frame only notes slight tenderness with no objective evidence of painful motion, weakness, fatigability, or incoordination. The fact that the Veteran's flexion is limited to 130 degrees with pain at the maximal flexion was considered in the rating already assigned. A separate 20 percent rating was also assigned with consideration of DCs 5257 and 5258, and the Board similarly finds no basis in which to assign a higher or further separate rating. The Veteran's right knee disability during this time period consisted of a meniscus tear and at least a partial ACL tear with complaints of pain and giving way, but with no "obvious" evidence of true instability. That is, other than the possible ACL tear, the medical evidence found ligaments to be stable. Rather, the more emphasized concern was the Veteran's recurrent joint effusion and pain. A 20 percent rating under DC 5258 is appropriate, and DC 5258 does not provide for a higher rating. None of the objective evidence shows that the Veteran experienced any lateral instability or recurrent subluxation of the knee. Therefore, a separate compensable rating under DC 5257 is not warranted for this time period. There are other Diagnostic Codes relating to knee, but the Board finds these alternative diagnostic codes inapplicable here, to include Diagnostic Code 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula) and 5263 (for genu recurvatum). The medical evidence clearly rules out ankylosis or joint abnormality. That is, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran was able to move his right knee, albeit with some limitation, and so it was clearly not ankylosed. The Veteran's right knee was also not affected by nonunion or malunion of the tibia and fibula or by genu recurvatum. The Board also finds that a separate rating is not warranted under DC 5259 for symptomatic removal of semilunar cartilage because the impairment contemplated by that code is not separate and distinct from that contemplated by the assigned rating under DC 5258. For these reasons, the Board finds the evidence supports the current 10 and 20 percent disability ratings assigned for this time period. No increased rating or further separate rating is warranted. From July 1, 2008 From July 1, 2008, the Veteran's right knee disability is assigned a 10 percent rating for arthritis with limitation of motion and a separate 10 percent rating for residuals of his torn medial meniscus and torn ACL, to include mild instability. Post-operatively, private treatment records from July 2008 and August 2008 indicate the Veteran was recovering well. His manifestations at that time included a non-tender cyst in the back of his right knee, but with full range of motion, no effusions, and no instability. As of August 2008, the Veteran resumed physical activity, to include running, which caused recurrent knee effusion. The August 2008 record also notes significant synovitis. The Veteran was afforded a VA examination in October 2010 where the Veteran complained of increased pain and instability. He indicated wearing a brace at all times for extra support. Range of motion testing revealed full extension (0 degrees) to flexion limited to 90 degrees with no change after three repetitions. The Veteran indicated still working full time as a New York City policeman with only one week lost work due to right knee pain over the last year. The examiner at that time diagnosed the Veteran with right knee instability, status post meniscus repair. Private treatment records and VA outpatient treatment records from 2009 to 2012 indicate complaints of pain, decreased range of motion, with findings of swelling, tenderness, and mild crepitus. The Veteran underwent an additional VA examination in June 2011 where the Veteran complained of giving way, instability, pain stiffness, weakness, and incoordination, but with no episodes of dislocation, subluxation or locking. The examiner noted the Veteran's prior history of repeated effusions. On examination, the Veteran's flexion was limited to 97 degrees (with full extension). While painful, the examiner did not note any change to motion on repetition. The examiner diagnosed the Veteran with chronic right knee synovitis with "positional" instability and a partial ACL tear. Most recently, the Veteran was afforded a VA examination in May 2012. Therein, the examiner noted the Veteran's medical and surgical history. The examiner noted the Veteran's history of an ACL tear, meniscal tear, and osteoarthritis of the right knee. The Veteran indicated continuing his job as a policeman, but after 2008, he switched to administrative and supervisory work. The Veteran complained of mild pain, which has not resulted in any absenteeism. On examination, the Veteran had full range of motion with some pain at 140 degrees, but no change on repetition. The examiner noted pain on movement with interference with sitting, standing and weight bearing activities. Diagnostic tests noted some evidence of mild anterior instability, but no posterior or medial-lateral instability. There was no objective evidence of subluxation or dislocation. The examiner noted the Veteran's history of joint effusion, but found no evidence of recurrence since 2008. Rather, the Veteran's right knee disability was described as currently manifested by well-healed scars, osteoarthritis, full range of motion, but with pain, mild anterior instability with a history of meniscal and ACL tears. In short, after the 2008 surgery, the Veteran's right knee disability has been manifested by painful motion and some limitation of flexion, but range of motion testing during this time frame did not show any finding even meeting the criteria for a compensable rating under DC 5260 or DC 5261. Indeed, as of May 2012, the Veteran's range of motion was described as "full." Even with consideration of the Deluca factors, it is clear that the Veteran does not have sufficient limitation of motion to warrant more than the assigned rating of 10 percent. A separate 10 percent rating was also assigned with consideration of DCs 5257 and 5258, and the Board similarly finds no basis in which to assign a higher or further separate rating. The Veteran's right knee disability during this time period consisted of history of a meniscus tear and at least a partial ACL tear with evidence of mild anterior instability, but no evidence of current joint effusions, lateral instability, locking, dislocation, or subluxation. Therefore, a 10 percent rating under DC 5258 is not warranted and a rating in excess of 10 percent is not warranted under DC 5257. There are other Diagnostic Codes relating to knee, but the Board finds these alternative diagnostic codes inapplicable here, to include Diagnostic Code 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula) and 5263 (for genu recurvatum). The medical evidence clearly rules out ankylosis or joint abnormality. That is, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran was able to move his right knee, albeit with some limitation, and so it was clearly not ankylosed. The Veteran's right knee was also not affected by nonunion or malunion of the tibia and fibula or by genu recurvatum. The Board also finds that a separate rating under DC 5259 is not warranted because the impairment contemplated by that code is not separate and distinct from that contemplated by the 10 percent rating for limitation of motion. Other Considerations Consideration has been given to assigning a further staged rating; however, at no time during the periods in question has the disability warranted more than the assigned ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not in order. ORDER Entitlement to an initial rating greater than 10 percent for degenerative joint disease of the right knee both prior to March 12, 2008, and after June 30, 2008, is denied. Entitlement to an initial separate rating greater than 20 percent for a right knee disability, post-operative, prior to March 12, 2008, and a separate rating greater than 10 percent for a right disability, post-operative, after June 30, 2008, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs