Citation Nr: 1304358 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-22 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the left knee, status post surgery for ACL repair with residual scars. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1994 to March 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which granted service connection for degenerative arthritis, left knee, status post surgery for ACL tear with residual scars, assigning a 10 percent evaluation effective July 23, 2007. In August 2008, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in June 2009. His case is currently under the jurisdiction of the VA RO in Los Angeles, California. While the Veteran did request a Travel Board hearing on his June 2009 VA Form 9, in a subsequent communication received in July 2009, he withdrew his request for a Board hearing. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). FINDING OF FACT The Veteran's service-connected left knee disability is manifested by flexion limited to no less than 135 degrees, with pain at 130 degrees, extension limited to no more than 0 degrees, degenerative arthritis, and no more than slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected degenerative arthritis of the left knee, status post surgery for ACL repair with residual scars, based on arthritis, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.71a, Diagnostic Codes 5010-5260 (2012). 2. The criteria for a separate 10 percent disability rating for instability of the left knee are met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, 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. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Prior to the initial adjudication of the Veteran's claim, a letter dated in August 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, the August 2007 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has at no time referenced any private or other outstanding treatment records that he wanted VA to obtain or that he felt were relevant to the claim. The Board notes that the Veteran has had additional service in the National Guard and that records from this service have not been associated with the claims file. However, there is no indication that he was treated for his left knee disability during his National Guard service or that any records from this period of service would be relevant to his present claim. Notably, he has indicated that his left knee treatment has been at VA medical facilities. As such, the Board finds that these records need not be obtained and VA has fulfilled its duty to obtain relevant records. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran with a VA examination for his left knee disability in November 2007. The examiner obtained a thorough history and provided a thorough physical examination, including the appropriate range of motion testing. Thus, the Board finds that the November 2007 examination is adequate for determining the disability rating for the Veteran's service-connected left knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Additionally, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected left knee disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The Board notes that a March 2008 VA treatment record indicates that the Veteran reported being told by a civilian physician that he would need knee replacement surgery. However, there is no indication that this recommendation, if given, was in response to a worsened state of disability rather than the Veteran's state of disability as reported at the November 2007 VA-QTC examination. Notably, range of motion testing performed in July 2008, after this March 2008 notation, showed range of motion measurements that were comparable to those obtained at the November 2007 VA-QTC examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Thus, the Board finds that a new VA examination is not necessary at this time. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim 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 degrees of disability 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. See 38 U.S.C.A. § 1155 (West 2002); 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing him claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's service-connected degenerative arthritis of the left knee, status post surgery for ACL tear with residual scars has been evaluated as 10 percent disabling under Diagnostic Codes 5010-5260. He seeks a higher evaluation. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 (2012). Diagnostic Code 5010 provides the rating criteria for arthritis, due to trauma, substantiated by x-ray findings. Diagnostic Code 5260 provides the rating criteria for limitation of flexion of the leg. Under Diagnostic Code 5010, arthritis, due to trauma, substantiated by x-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. See 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2012). Under Diagnostic Code 5003, 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012). Diagnostic Codes 5260 and 5261 provide the criteria for rating limitation of motion of the knee and leg. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2012). Under Diagnostic Code 5260, a noncompensable rating is assigned for flexion of the leg limited to 60 degrees. A 10 percent rating is assigned for flexion of the leg limited to 45 degrees. A 20 percent rating is assigned for flexion of the leg limited to 30 degrees. And a 30 percent rating is assigned for flexion of the leg limited to 15 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Under Diagnostic Code 5261, a noncompensable rating is assigned for extension of the leg limited to 5 degrees. A 10 percent rating is assigned for extension of the leg limited to 10 degrees. A 20 percent rating is assigned for extension of the leg limited to 15 degrees. A 30 percent rating is assigned for extension of the leg limited to 20 degrees. A 40 percent rating is assigned for extension of the leg limited to 30 degrees. And a 50 percent rating is assigned for extension of the leg limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Additionally, the 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). Separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-04. Under Diagnostic Code 5257, a 10 percent evaluation is assigned for slight recurrent subluxation or lateral instability of the knee. A 20 percent evaluation is assigned for moderate recurrent subluxation or lateral instability of the knee, and a 30 percent evaluation is assigned for severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). The General Counsel for VA, in a precedent opinions dated July 1, 1997, (VAOPGCPREC 23-97) (and as reiterated in VAOPGCPREC 9-98, August 14, 1998) held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 or 5258-5259. General Counsel stated that when a knee disorder is already rated under Diagnostic Code 5257 (or 5258-5259), the Veteran must also have limitation of motion which at least meets the criteria for a 0 percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. See also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additional disability is shown, a veteran rated under Diagnostic Code 5257 (or 5258-5259) can also be compensated under Diagnostic Code 5003 and vice versa. As referenced above, the Veteran underwent a VA-QTC examination for his left knee disability in November 2007. At that time, he complained of weakness, stiffness in the mornings, swelling with prolonged standing or walking, lack of endurance, and pain which he described as crushing, aching, oppressing, and sharp, and rated as an 8 out of 10. He indicated that his left knee pain was elicited with physical activity or without an impetus and that it was relieved with rest, time, and Motrin. He denied any heat, redness, giving way, locking, fatigability, or dislocation. The examiner observed three symmetric scars on the Veteran's left knee, measuring 1cm by 1cm with hyperpigmentation of less than six square inches and no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, or abnormal texture. He also observed crepitus, but no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation, or guarding of movement and recorded range of motion measurements of 140 degrees of flexion with pain at 130 degrees and 0 degrees of extension. The Veteran's range of motion was additionally limited by pain after repetitive use, but not by fatigue, weakness, lack of endurance, or incoordination. Anterior and posterior ligaments stability, medial and lateral collateral ligaments stability, and medial and lateral meniscus testing were within normal limits. X-rays of the left knee showed degenerative arthritic changes. The examiner diagnosed the Veteran with degenerative arthritis of the left knee joint and status post surgery for ACL tear with residual scar based on the Veteran's subjective complaints, x-ray findings, and abnormal examination. He concluded that the Veteran's knee disability resulted in recommended avoidance of frequent kneeling, bending, stopping, climbing, and prolonged standing and walking. The medical evidence also includes VA treatment records that discuss the Veteran's left knee disability and are generally consistent with the VA-QTC examination. Notably, a July 2007 VA treatment record showed normal range of motion without crepitation and a March 2008 VA treatment record indicated that range of motion was "okay" with some discomfort and crepitus. June and July 2008 VA treatment records show findings of degenerative joint disease, mild ligament damage, diffuse tenderness and swelling, a varus deformity, and range of motion from 0 to 135 degrees. Additionally, a June 2008 VA treatment record indicates that the Veteran was issued a brace for his left knee. The medical evidence of record does not establish that the Veteran's service-connected left knee disability warrants more than a 10 percent disability rating under Diagnostic Codes 5010-5260 at any point throughout the appeals period. There is no medical evidence to support a finding that the Veteran's flexion is limited to 30 degrees or less to warrant an increased rating based on limitation of flexion. Rather, his more limited recorded flexion is 135 degrees, or 130 degrees when considering the point at which pain started. Without evidence of more severe limitation of flexion, a higher rating cannot be granted under Diagnostic Codes 5010-5260. Although an increased rating cannot be granted under Diagnostic Codes 5010-5260, the Board finds that a separate 10 percent evaluation under Diagnostic Code 5257 is appropriate for the ACL tear of the left knee throughout the entire appeals period. Although the VA-QTC examiner noted that the Veteran's ligament stability testing was within normal limits, the Board finds that the VA treatment records showing mild ligament damage and the use of a left knee brace support a finding of slight recurrent lateral instability. As referenced above, where a veteran is rated under Diagnostic Code 5257 for instability and also has arthritis with painful motion, he may receive a separate rating under Diagnostic Code 5003 and vice versa. See VAOPGCPREC 9-98; see also Degmetich, supra. Thus, affording the Veteran the full benefit of the doubt, the Board finds that a separate 10 percent rating under Diagnostic Code 5257 is warranted. Although an additional 10 percent rating is appropriate, a rating in excess of 10 percent is not warranted under Diagnostic Code 5257. Notably, there is no evidence showing that any lateral instability is more than slight. Significantly, all ligament stability testing has resulted in normal findings and the only notation of ligament damage characterizes the damage as "mild." There is simply no evidence to find that the Veteran's left knee disability warrants a rating in excess of 10 percent for more than slight recurrent subluxation or lateral instability under Diagnostic Code 5257. As such, the Board finds that a separate rating in excess of 10 percent for instability is not warranted. There is also no indication that the Veteran experiences any additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of a joint to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45 (2012); see also DeLuca, supra. Significantly, the Board considered the point at which the Veteran first experienced pain when determining his limitation of motion. Further, while the VA examiner noted the Veteran's complaints, there is no objective evidence of additional functional loss due to pain, weakness, fatigability, incoordination or pain on movement of the left knee due to limitation of motion, other than that already recognized by the Veteran's currently assigned evaluation. As such, an increased rating under DeLuca is not warranted. Additionally, there is no indication that the Veteran's left knee disability warrants an increased rating under any other diagnostic code relating to the knees. The claims folder contains no medical evidence indicating that the Veteran's left knee disability is manifested by ankylosis, dislocation of semilunar cartilage, extension limited to 5 degrees or more, impairment of the tibia and fibula, genu recurvatum, or symptoms other than those discussed above. As such, an increased rating cannot be assigned under Diagnostic Codes 5256, 5258, or 5261-5263. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5268-5259, 5261-5263 (2012). To the extent that there has been removal of semilunar cartilage associated with the Veteran's knee surgery(s), assignment of another separate 10 percent rating therefor is not warranted under Diagnostic Code 5259 because of the 10 percent herein assigned for instability under Diagnostic Code 5257. These codes essentially cover the same symptoms, so awarding compensation under both diagnostic codes is to be avoided as pyramiding under 38 C.F.R. § 4.14 (2012). See also Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991); VAOPGCPREC 23-97 and VAOPGCPREC 9-98, supra. Further, there is no evidence that the Veteran's left knee surgical scars result in any disabling effects to warrant a separate evaluation. As such, a separate evaluation cannot be assigned under Diagnostic Codes 7801-7805. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2012). Further, the Board notes that there is no indication in the medical evidence of record that the Veteran's left knee symptomatology warranted other than the currently assigned disability ratings throughout the appeal period. As such, assignment of staged ratings is not warranted. See Fenderson, supra. 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). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With regard to the Veteran's service-connected left knee disability, the evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The rating criteria for the Veteran's currently assigned 10 percent disability ratings contemplate his most limited range of motion measurements, including the point at which he first experiences pain. The Veteran's complaints of pain and limited range of motion due to pain are also adequately contemplated by the rating schedule. Notably, 38 C.F.R. §§ 4.40 and 4.45 adequately contemplate any functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of the joint. As to the rating for instability, a higher evaluation is available for severe instability, which the Veteran does not manifest. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that either of the ratings assigned to the Veteran's service-connected left knee disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. In reaching the above-stated 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 of entitlement to an increased rating for manifestations of his left knee disability except as granted herein, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the left knee, status post surgery for ACL repair with residual scars, based on arthritis, is denied. Entitlement to a separate disability rating of 10 percent for slight instability of the left knee is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs