Citation Nr: 1307448 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-10 143A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating greater than 10 percent for degenerative joint disease of the left knee. 2. Entitlement to a rating greater than 20 percent for status post repair of a torn lateral meniscus and anterior cruciate ligament of the left knee with instability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from September 1980 to March 1984. This appeal came before the Board of Veterans' Appeals (Board) from a decision of December 2003 by the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. The RO in Baltimore, Maryland is currently the agency of original jurisdiction. When the case was before the Board in July 2010, it was decided in part and remanded in part. FINDING OF FACT The left knee disability is manifested by limitation of motion and instability; flexion is not limited to less than 45 degrees; extension is not limited to more than 5 degrees; and the instability does not more nearly approximate severe than moderate. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259, 5260, 5261, 5262, 5263 (2012). 2. The criteria for a rating greater than 20 percent for status post repair of a torn lateral meniscus and anterior cruciate ligament of the left knee with instability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist 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 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 record reflects that the originating agency provided the appellant all required notice by letters dated in July 2006 and June 2008. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claims would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that service treatment records and relevant post-service treatment records have been obtained. In addition, the Veteran was afforded VA examinations. The Board finds the examination records are adequate for ratings purposes: they contain all information necessary to rate the disabilities. Although the Veteran reported decreased limitation of motion after the most recent VA examination, the record includes subsequent range of motion findings, those recorded in July 2011, and the Board finds the record is adequate for rating purposes. The Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decision. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate either claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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 of a knee 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. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. 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. 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). 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 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) (West 2002); 38 C.F.R. § 4.3 (2012). Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection was granted for a left knee disorder, status-post torn lateral meniscus and anterior cruciate ligament, in a September 1993 decision. A 10 percent disability evaluation was assigned for instability. In a July 2003 rating decision, the Veteran was assigned a 20 percent rating for left knee instability and a separate 10 percent rating for arthritis with limitation of motion. In the December 2003 rating decision on appeal, the RO continued the assigned evaluations of 10 and 20 percent. An August 2003 VA treatment record reflects the Veteran's history of left knee pain, particularly with ascending stairs or standing from a seated position. She also reported stiffness with prolonged sitting. She indicated that although she had "considerable discomfort," she did not let it stop her from performing activities. Examination revealed no effusion, minimal crepitus, 2/4 patellar glide, no patellar grind pain, and minimal tenderness to palpation. Range of motion was from 0 to 100 degrees. She had "obvious positive Lachman, anterior drawer 2+/3 with minimal whining to valgus stress." There was no tenderness or pain with varus or valgus stress to the knee, however. McMurray's test was negative. The Veteran was assessed with an unstable left knee. A subsequent August 2003 VA treatment record reflects the Veteran's history of pain on stairs with occasional giving out. She denied falling. Testing revealed range of motion from 0 to 120 degrees with pain. There were pain and crepitus with patellar grind test, but valgus and varus stress tests were negative. A November 2003 VA treatment record reveals findings of no effusion, no patellar grind, and normal patellar movement with no apprehension. The Veteran had, "good range of motion past about 100 degrees." A January 2004 VA treatment record reflects the Veteran's history of pain with walking stairs wearing high heels. She denied catching, locking, or instability. She reported that she had stopped working as a mail carrier because she was unable to walk long distances. Examination revealed no effusion or patellar grind, and range of motion was from 0 to 110 degrees. There was point tenderness of the lateral tibial plateau. Ligaments were intact to anterior posterior varus valgus stress though they opened up on the lateral aspect with varus stress. She had 1+ laxity of Lachman's. The examiner reported that the Veteran probably could never be a mail carrier or someone who walked long distances because it would only aggravate and worsen her condition. An April 2004 VA treatment record reflects findings of slight valgus alignment. There was a 2+ Lachman's test but, "otherwise [the knee was] stable to posterior drawer and varus and valgus stress." An August 2004 VA treatment record reflects findings of full range of motion, 5/5 strength, and mild lateral joint laxity and anterior joint laxity. A subsequent August 2004 VA treatment record reflects findings of no effusion, and the knee was stable to varus-valgus stress. A September 2004 VA treatment record reflects the Veteran's history of increased symptoms with stairs or bending and crepitus. Examination revealed no effusion, warmth, or erythema. There was significant tenderness to palpation of the mediolateral patellofemoral area. Patellar glide was 3/4 with negative apprehension. Patellar grind test was positive and the knee was otherwise stable to varus, valgus, anterior, and posterior stressors as well as Lachman. A November 2004 VA examination record reflects the Veteran's complaints of left knee pain, stiffness, weakness, warmth, occasional locking, instability, and occasional swelling, with increased pain after sitting, using stairs, standing, or walking and increased weakness after repetitive movement. The Veteran also reported use of a brace and occasional use of a cane, especially on bad weather days, and indicated that she had daily flare-ups with pain in both knees with pain in the left knee escalating to 10/10 and lasting for 24 hours. She indicated that during a flare-up she applies heat or ice and sits and rest. The Veteran explained that her knee disabilities result in functional impairment, to include difficulty doing housework or activities with her children. Examination revealed range of motion from 0 to 90 degrees, with a "pain level of 8." Repetitive motion increased pain to 9/10 but there was no evidence of increased fatigue, increased weakness, decreased endurance, or incoordination. There was no redness, warmth, or effusion. There was slight laxity with anterior and posterior stress and medial and lateral stress. McMurray's was negative. A March 2006 VA treatment record reflects the Veteran's history of pain and swelling. She also reported grinding and discomfort with stairs. She did not report any instability complaints. Examination revealed range of motion from 0 to 130 degrees. There was no tenderness, and the knee was stable to varus and valgus stress. She had a minimal anterior drawer, 1+ Lachman, and pivot glide. There was pain with patellar compression and crepitus. She did not have patellar apprehension. A January 2007 VA examination record reflects the Veteran's history of pain, with severe (9-10/10) pain associated with standing or sitting for 1 hour, cold weather, or using stairs. She also reported flare-ups occurred two to three times each week to a pain level of 8 or 10 that lasted from 4 hours to all day. She reported that during flare-ups, she tried to rest and avoid using steps. She also reported slight redness and warmth, tenderness, stiffness, weakness, and instability and indicated that her left knee gave out three to four times per month. She reported that she used a brace and used a cane on particularly bad days. She reported that she was starting a new job. Examination revealed range of motion from 0 to 95 degrees, with pain beginning at 90 degrees. There was increased pain with repetition, but no further limitation of motion, increased weakness, decreased endurance, or incoordination. There was tenderness with palpation but no redness, warmth, or effusion. Strength was 4/5 to 5/5. The medial and collateral ligaments were stable with varus and valgus pressure and there was slight laxity with anterior-posterior drawer with anterior movement. McMurray's was negative. An August 2009 VA treatment record reflects that the Veteran believed that she needed a brace for the left knee and that she was afraid of falling. She explained that she was unsteady on the stairs, so she used the rail and that her left knee gave out three to four times per day. Examination revealed very slight genu valgus and flexion to 105 degrees. There were some patellofemoral compression pain of the left knee and slight swelling but no gross joint effusion. There were mild laxity and some crepitus. An October 2009 VA examination record indicates that the Veteran had range of motion from 0 to 105 degrees. There were no objective evidence of pain with motion and no ankylosis. A December 2009 VA treatment record reflects the Veteran's complaint of increased discomfort in her knees at work because it was cold in the office. She was provided a note for her work, requesting that the Veteran be allowed to use a heater in her office because her knee arthritis was aggravated by cool or cold conditions. A January 2010 VA treatment record reflects a history of grinding and rubbing sensation with motion. The record notes that the left knee "seem[ed] stable [and] not unduly loose." A December 2010 VA treatment record reflects the Veteran's report of increased pain in the left knee. She also reported intermittent swelling. Examination revealed no swelling or pain, normal strength, and normal gait. A December 2010 VA examination record reflects the Veteran's complaint of pain, increased in cold and rainy weather or with prolonged standing or using steps. She denied locking. Examination revealed normal ambulation. There was no sign of effusion, and the patella was mobile and tracked well. There was mild crepitus with motion and tenderness at the joint lines. There was no lateral instability or subluxation, but there was mild laxity of the anterior cruciate ligament, which the examiner considered a slight degree of instability. There was no locking. Active range of motion was from 0 to 100, with pain stopping flexion at 100 degrees. There was increased pain after repetition from 95 to 110 degrees. She denied an effect on her job. She reported that her main functional impairment was due to pain and decreased endurance and stamina with physical activity. A January 2011 VA physical therapy record reflects the Veteran's history of pain and occasional buckling and grinding in the left knee. She reported that she had increased pain with climbing steps, sitting for prolonged periods, or lifting objects. She denied any limitations at work. Examination revealed motion from 0 to 99 degrees with pain. Strength was decreased. Varus and valgus stress tests were negative, but there was increased laxity on Lachman's and anterior drawer tests. Subsequent physical therapy records dated in January and February 2011 note improvement in the knee, though she reported that she still had giving away at times. A July 2011 VA treatment record reflects the Veteran's complaint of pain, particularly when going down stairs. Examination revealed no effusion. There was symmetric opening medially with valgus stress. There was no pain with varus or valgus stress. Anterior drawer was normal; and Lachman was slightly lax compared to the right. There were pain with squat and pain to palpation over the patella. Testing revealed range of motion from 0 to 100 degrees. A subsequent July 2011 VA physical therapy record reflects the Veteran's report of giving way and decreased range of motion. Testing revealed range of motion from 5 to 128 degrees. Knee strength was 4-/5. Varus and valgus stress tests were negative. The left knee disability is currently rated at 10 percent under DC 5010 for arthritis with limitation of motion and 20 percent under DC 5257 for instability. None of the range of motion tests, to include after repetitive motion, has shown that the Veteran has limitation of extension to no more than 5 degrees. Moreover, flexion has never come close to being limited to less than 45 degrees, even after repetitive motion. While the Veteran has reported experiencing flare ups, there is no evidence indicating that she has sufficient limitation of motion during such flare ups to warrant more than the 10 percent rating currently assigned for limitation of motion. A higher rating is also not warranted based on instability. The Board acknowledges that the Veteran has competently reported giving way, that the Veteran uses a brace, and that the Veteran reports occasional use of a cane. However, the Veteran has indicated that the instability only occurs from "time to time," which suggests it is not a frequent occurrence, and that the instability is generally prevented by use of a brace, and she has denied falls. Furthermore, the medical evidence reflects clinical findings of mild or minimal laxity or instability. Based on these findings and the Veteran's description of the nature and frequency of the instability, the Board finds the Veteran's instability does not more nearly approximate the severe instability required for a 30 percent rating than the moderate instability contemplated by the assigned rating of 20 percent. The Board has considered whether a higher or separate rating is warranted on any other schedular basis but has determined that it is not. In this regard, the Board notes that there is no evidence of ankylosis, malunion, or nonunion. In addition, frequent episodes of "locking," pain, and effusion have not been reported by the Veteran or shown by the medical evidence. Consideration has been given to assigning a staged rating; however, at no time during the period in question have the disabilities warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board also has considered whether this case 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). As discussed above, the Veteran's left knee disability is manifested by instability and symptoms productive of limitation of motion. These manifestations are contemplated by the schedular criteria. Therefore, referral of the case for extra-schedular consideration is not in order. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating greater than 10 percent for degenerative joint disease of the left knee is denied. Entitlement to a rating greater than 20 percent for status post repair of a torn lateral meniscus and anterior cruciate ligament of the left knee with instability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs