Citation Nr: 1304237 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-36 322 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUE Entitlement to an evaluation in excess of 10 percent for internal derangement of the right knee, status post arthroscopy prior to September 22, 2011, and in excess of 20 percent on and after that date. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from September 1956 to February 1960, from March 1961 to November 1977, and from May 1978 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the RO in Boise, Idaho. The Veteran testified before a Veterans Law Judge (VLJ) at a videoconference hearing in June 2010. A transcript is of record. Unfortunately, the VLJ before whom the Veteran testified has since retired from the Board. The Veteran was notified of this and offered another opportunity to testify before a VLJ in connection with this appeal in September 2012. The Veteran responded that he did not wish to have another hearing in a response that same month. The Board finds that due process has been satisfied and will proceed to consider the appeal. This claim was previously before the Board in April and September 2011, at which time the Board remanded it for additional development. While the case was on remand, a March 2012 rating decision was issued increasing the Veteran's rating from 10 to 20 percent for the right knee disability. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. Prior to June 3, 2010, the Veteran's internal derangement of the right knee, status post arthroscopy was manifested by no more than slight ligament instability without patellar subluxation. 2. On and after June 3, 2010, the Veteran's internal derangement of the right knee, status post arthroscopy was manifested by moderate ligament instability without patellar subluxation. 3. The Veteran's internal derangement of the right knee, status post arthroscopy has been manifested by degenerative arthritis with objective limitations of motion as of November 24, 2008. 4. The Veteran's internal derangement of the right knee, status post arthroscopy has not been manifested by ankylosis, symptomatic removed or dislocated cartilage, limitation of extension, limitation of flexion to 45 degrees or less, tibia or fibula impairment or genu recurvatum at any time during the period on appeal. CONCLUSIONS OF LAW 1. Prior to June 3, 2010, the criteria for a rating in excess of 10 percent for ligament instability based on internal derangement of the right knee, status post arthroscopy are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2012). 2. On and after June 3, 2010, the criteria for a rating of 20 percent and no higher for ligament instability based on internal derangement of the right knee, status post arthroscopy are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5257. 3. The criteria for an evaluation of 10 percent, but no higher, for degenerative arthritis based on internal derangement of the right knee, status post arthroscopy, are met on and after November 24, 2008. 38 U.S.C.A. § 1155, 5107; 38 C.F.R. § 4.71a, DC 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for an increased rating. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. Id. Prior to initial adjudication of the Veteran's claim, a January 2007 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran an appropriate VA examination most recently in September 2011. The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The 2011 VA examination report is thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case in April and September 2011 to request that the Veteran provide sufficient information and, if necessary, authorization, to enable the RO to obtain any additional evidence, not already of record, which pertains to the claim and provide a VA examination. The AMC sent an April 2011 letter which requested the additional evidence. The Veteran's disability was evaluated at a September 2011 VA examination. The Board finds that the RO complied substantially with the September 2011 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. See Stegall. Increased Ratings The Veteran contends that he is entitled to an increased rating in excess of 10 percent prior to September 22, 2011, and in excess of 20 percent on and after September 22, 2011, for his right knee internal derangement, status post arthroscopy. For the reasons that follow, the Board concludes that an earlier effective date for the 20 percent rating for ligament instability and a separate compensable rating for degenerative arthritis are warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2012). The Veteran's right knee internal derangement has been rated under Diagnostic Code (DC) 5257 for ligament laxity or recurrent patellar subluxation. 38 C.F.R. § 4.71a, DC 5257. A 10 percent rating requires slight recurrent subluxation or lateral instability of a knee. A 20 percent rating requires moderate subluxation or lateral instability of a knee. A 30 percent evaluation is warranted for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993). In rating instability, the Board observes that the words "slight," "moderate," and "severe," as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran underwent a May 2007 VA examination. Collateral and cruciate ligaments of the right knee were intact, and there was no calf tenderness. He did not have specific complaints of instability or patellar subluxation at that time. The Veteran wrote in his November 2008 VA Form 9 that he had ever-present and increasing pain in his knee. He complained of times when the knee "tried" to bend backwards. December 2008 private orthopedic treatment notes indicate that the Veteran complained of medial knee pain that varied with activity. He complained of weakness and occasional limping, and he felt as though the knee would give out on occasion. There was discrete endpoint with anterior drawer and Lachman's sign. The Veteran testified before the Board on June 3, 2010, that sometimes the knee was on the verge of buckling backwards and others times there is severe pain at the base of the kneecap on the medial side. His representative indicated that the disability had worsened since his 2007 VA examination. The Veteran was evaluated at a September 2011 VA examination. He complained that he had a constant knee ache, made worse with activity. He occasionally felt that the knee would dislocate backwards or forwards. He was found to have anterior ligament instability between 5 and 10 millimeters, which was marked as 2+. The other instability tests were normal. He had no evidence of a history of recurrent patellar subluxation or dislocation. The Board finds that, prior to his June 2010 testimony, his service-connected right knee internal derangement was productive of no more than slight ligament instability without patellar subluxation. The Veteran had complaints of weakness and feelings of giving way in the knee, but no impairment could be elicited on physical examination. The Veteran had no complaints of patellar disorders. The Board finds that this is comparable to no more than "slight" disability under DC 5257. A rating in excess of 10 percent prior to June 3, 2010, is not warranted for knee instability. The Board finds that the Veteran's disability had worsened to a "moderate" degree as of his June 3, 2010, testimony. The Board remanded the Veteran's claim because he alleged worsening during his testimony. Worsening was documented in the September 2011 VA examination report. The RO increased the Veteran's rating for ligament instability to 20 percent based on the September 2011 VA examination, effective the date of the exam. The Board finds, however, that the Veteran's testimony that his disability had worsened in conjunction with his complaints of feeling that the knee would buckle on June 3, 2010, is competent evidence of the increased disability. The Veteran had demonstrated disability related to the anterior ligament but not in the other ligaments. The Board concludes that the criteria for a 20 percent disability rating under DC 5257 were met as of June 3, 2010. The Board finds that the Veteran's right knee internal derangement has at no time been productive of more than "moderate" disability. The Veteran has not reported or been found to have patellar subluxation at any time. The Veteran has not required the use of assistive devices for his right knee disability. At worst, only one ligament was found to have impairment in September 2011. The Board finds that the preponderance of the evidence demonstrates that the Veteran's knee ligament instability is not "severe." The Board concludes that a rating for "severe" ligament instability or patellar subluxation has not been warranted at any time. The record also establishes that the Veteran has additional disabilities of the right knee, including degenerative arthritis and a postoperative medial meniscus tear. VA's General Counsel has provided guidance concerning increased rating claims for knee disabilities. See VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). In VAOPGCPREC 23-97, it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. Diagnostic Code 5258 (dislocated semilunar cartilage) and Diagnostic Code 5259 (removal of semilunar cartilage, symptomatic) both address issues of cartilage damage. 38 C.F.R. § 4.71a. A 20 percent rating is available for dislocated, symptomatic cartilage with frequent episodes of "locking," pain and effusion into the joint. Id., at DC 5258. A 10 percent rating is available for symptomatic removal of cartilage. Id., at DC 5259. These are the only ratings available under these DCs. See id. The Veteran underwent an arthroscopy and partial medial meniscectomy of the right knee in December 2002 several years prior to the filing of the instant claim in 2007. The Veteran's medial meniscus is not dislocated. His lateral meniscus is intact according to the findings of his VA examination reports and treatment records. The evidence of record does not contain findings or complaints of "locking" or effusion into the joint. There are complaints of pain, which will be addressed further below. There being no present signs or symptoms of meniscal impairment, the Board finds that the criteria for a separate rating under DCs 5258 or 5259 are not met. Diagnostic Code 5003 specifies that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The criteria for ratings on limitation of motion of the knee are in two groups, limitation of flexion and limitation of extension. Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees or a 30 percent evaluation if flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees or a 50 percent evaluation if extension is limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04 (Sept. 17, 2004). On examination in May 2007, flexion of the right knee was to 120 degrees without pain. He had extension to zero degrees. The examination report indicates that the Veteran did three sets of ten squats without pain or discomfort. Range of motion did not change with repetitive motion testing. In December 2008 private orthopedic treatment, the Veteran had full range of motion. Range of motion of the right knee was 0 to 122 degrees, and there was pain at the end range of knee flexion on the right side. There is no notation that measurements were taken by goniometer, but the entry supports the VA examination findings. At his September 2011 VA examination, he had flexion to 115 degrees and extension to zero degrees. Following repetitive testing, the Veteran had flexion to 100 degrees and extension to zero degrees. The preponderance of the evidence shows that the Veteran had no limitation of extension or limitation of flexion to 45 degrees or less. The criteria for a compensable rating under DC 5260 and DC 5261 are not met at any time during the period on appeal. The Board turns to consider whether the Veteran had limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The Veteran underwent a VA examination in May 2007 at which it was noted that he had not had treatment for his knee since 2003, although he had continued to have some pain. He was aware of minor pain most of the time, which he rated as a one out of ten. The pain did not interfere with activity, but he had "quit" deep knee bends a long time before, and avoided squatting. He said he also did not do deep squats because of knee pain. The Veteran got pain under the distal patella an average of two times a week, which occurred with or without activity. The knee did not lock or give out, and activity was not limited by pain, weakness, fatigue, or lack of endurance. The examiner wrote that the Veteran "carries on with what he is doing" and had no major flare-ups which limited his activity. The May 2007 examination report indicates he performed three sets of ten squats without pain or discomfort. He had full extension with flexion to 120 degrees. Range of motion did not change with repetitive motion testing. X-rays of the right knee showed moderately reduced cartilage space medially, and the impression was postoperative right knee. The Veteran wrote in his November 2008 VA Form 9 that he had ever-present and increasing pain in his knee. The knee was weakening and was affecting his mobility, and there was a noticeable difference from the current year to the prior one. He further stated that the pain flare-ups were frequent and lasted for several days, and he could walk for reduced distances and had a noticeable limp. December 2008 private orthopedic treatment notes indicate that the Veteran complained of medial knee pain that varied with activity. On examination there was a full range of motion, mild patellofemoral crepitus, no effusion, marked medial compartment tenderness over the medial femoral condyle and medial tibial plateau, and mild joint line tenderness. X-rays showed early medial compartment osteoarthritis. The Veteran was referred to physical therapy, at which he complained of a constant ache and occasional sharp pains that averaged three to four out of ten. He complained of weakness and occasional limping, and he felt as though the knee would give out on occasion. Straight leg raise was 50 degrees on the right. The Veteran was to be treated for two to three times a week for four to six weeks, as needed. The Veteran testified at his June 2010 hearing that he cannot perform squats, and that the May 2007 VA examination report was incorrect in stating that he performed them at the examination. He said activity increases his level of pain, and he is no longer able to mow his lawn for the hour and a half it takes to complete the task. Sometimes the knee is on the verge of buckling backwards, and others times there is severe pain at the base of the kneecap on the medial side. He said he could no longer camp or climb mountains. He used an orthopedic device prescribed by a doctor and sometimes he wrapped a bandage around the knee. He took Tylenol, and walked with a slight limp. His representative indicated that the Veteran's problems with the right knee had worsened since the May 2007 examination. The September 2011 VA examination report shows that the Veteran had a full range of motion of flexion of 115 degrees, with pain beginning at 110 degrees. After repetitive testing, his range of flexion was 100 degrees. The Veteran had less movement, weakened movement, excess fatigability, pain on movement, disturbance of locomotion and interference with sitting, standing and weight bearing in both knees after repetitive testing. Muscle strength testing was 4/5 in both knees. These findings tend to show that the Veteran does not have specific limitation of motion due to his service-connected right knee disability. The Board notes, however, that the left knee had no reduction in flexion following repetitive movement. The report indicates that x-rays of the right knee did not show degenerative arthritis. The Board finds that the criteria for a separate compensable rating for degenerative arthritis were met as of November 24, 2008. The Veteran described worsening symptoms including a limp, which is an objectively confirmable symptom of painful motion. The private treatment notes of December 2008 then documented the presence of degenerative arthritis by x-ray with crepitus and tenderness on examination, which had not been present in May 2007. The Board notes that this is in conflict with the September 2011 VA examination report; however, both are based on specific medical evaluation of the Veteran and the Board will resolve reasonable doubt in his favor and find that he has degenerative arthritis of the right knee. The evidence prior to November 24, 2008, tends to show that, although he had pain in the knee, arthritis was not present. Similarly, he did not have objective limitation of motion by his allegations or in the May 2007 examination findings. The Board concludes that a 10 percent rating for degenerative arthritis is warranted as of November 24, 2008. Additional Diagnostic Codes provide for additional ratings for disabilities of the knees depending on the symptoms shown. Since the record does not show that the Veteran's knee disorder involves ankylosis, impairment of the tibia or fibula, or genu recurvatum, additional ratings for the Veteran's knee disorder are not warranted under 38 C.F.R. § 4.71a, DCs 5256, 5262, 5263. In the present case, 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. The Board has accounted for the Veteran's complaints of painful movement, reduced endurance and flare-ups in the discussion of a rating under DC 5003 above. There are no additional complaints of painful motion left uncompensated. The Board concludes that the DeLuca criteria have been adequately addressed. There are no other applicable schedular criteria, so the Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The schedular evaluation for the Veteran's right knee internal derangement disability is not inadequate. The Veteran has identified symptoms of pain, impaired mobility, lost strength and instability in his right knee. These symptoms are anticipated by the Ratings Schedule, as discussed above. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The Veteran merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluations for that service-connected disability are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, supra. Entitlement to a total disability rating based on individual unemployability (TDIU) is an alternative theory of all claims for a higher disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). TDIU may be raised explicitly by a claimant or inferred from the record. An inferred claim for a TDIU is raised as part of an increased rating claim only when certain requirements are met. Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009). TDIU is raised by inference when: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In the present appeal, the Veteran has made no mention of unemployability. There is no suggestion of unemployability in the VA treatment records or VA examination reports. Instead, the Veteran is shown to have retired in 1999, well prior to the 2007 date of claim. Thus, the Board concludes that the Roberson requirements are not met and that consideration of TDIU is not warranted. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the possibility of staged ratings. The AMC issued a March 2012 rating decision which granted staging of the right knee rating which the Board has modified above. The Board has also assigned a staged rating for arthritis under DC 5003. Further staged ratings are inapplicable. See id. The Board has assigned increased staged ratings where the evidence was at least in equipoise in favor of the claim. The evidence has not been at least in equipoise in favor of his claim for ratings in excess of those assigned. Consequently, the benefit-of-the-doubt rule applies only to those granted ratings and not to ratings in excess of those assigned, and the claim is only granted to the extent described above. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. ORDER An evaluation in excess of 10 percent for internal derangement of the right knee, status post arthroscopy, prior to June 3, 2010, is denied. An evaluation of 20 percent for internal derangement of the right knee, status post arthroscopy, on and after June 3, 2010, is granted. An evaluation of 10 percent for degenerative arthritis for internal derangement of the right knee, status post arthroscopy, but no higher, on and after November 24, 2008, is granted. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs