Citation Nr: 1308095 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-37 162A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating greater than 10 percent for a left knee disability. 2. Entitlement to a rating greater than 10 percent for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from September 1989 to August 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2010 and May 2012, the Board remanded the present matter for additional development and due process concerns. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). A hearing before the undersigned Veterans Law Judge was held at the RO in April 2010. The hearing transcript has been associated with the claims file. FINDINGS OF FACT 1. The left knee disability is not manifested by moderate instability, limitation of extension, limitation of flexion to less than 100 degrees, or meniscal abnormality. 2. The right knee disability is not manifested by arthritis, meniscal abnormality, limitation of extension, limitation of flexion to less than 110 degrees, or moderate instability. CONCLUSION OF LAW 1. The criteria for a rating greater than 10 percent for a left knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, DC 5257 (2012). 2. The criteria for a rating greater than 10 percent for a right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, DC 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection was established for chondromalacia of the right and left knee by the RO in an October 1991 decision. A 10 percent rating was assigned under Diagnostic Code (DC) 5257, which rates instability. In May 2006, the Veteran submitted a claim for increased ratings. In the September 2006 rating decision on appeal, the RO continued the 10 percent rating but indicated that the rating was assigned under DC 5261, which rates limitation of flexion. Due to the RO's failure to sever the 10 percent rating under DC 5257 or assign a separate rating under DC 5261 and in light of VAOPGCPREC 23-97 and VAOGCPREC 9-2004, the Board finds the September 2006 rating decision did not effectively change the diagnostic code in effect for the knees. In other words, the Board finds the Veteran's knee disabilities have been consistently rated under DC 5257. Thus the issue is whether either knee disability warrants a rating greater than 10 percent under DC 5257 or a separate rating based on limitation of motion. The Veteran contends that his knee disabilities warrant higher ratings. He has reported that the disabilities result in functional and occupational impairment, to include missing work, due to symptoms such as pain. At his April 2010 hearing, he reported constant knee pain, "quite frequent" giving out, popping, inability to stand after stooping, feelings of laxity, and swelling and estimated that he missed approximately three to four days per month due to his knee disabilities. He also reported that he was unable to work overtime or do extra at his job because he has too much pain and functional impairment at the end of his normal workday. 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. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. 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. 38 C.F.R. § 4.14. While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A June 2005 VA treatment record indicates that the Veteran had no gait abnormality. A July 2006 VA treatment record reflects the Veteran's history of bilateral knee pain. The record notes that the Veteran had no swelling or edema and mild limitation of motion. A July 2006 VA examination record reflects the Veteran's history of pain, stiffness, occasional swelling, occasional giving way, and locking in the knees. He reported flare-ups with stairs, standing longer than 15 minutes, walking more than one-quarter block or on uneven surfaces, and weather changes. He also reported lack of endurance and use of a right knee brace and left knee sleeve with prolonged standing or walking. He explained that the disabilities impact his occupational functioning because he missed time from work and prolonged standing and walking for his job aggravated his knee disabilities, resulting in swelling and increased pain at the end of the day. He added that the disabilities result in functional impairment due to inability to use stairs, walk on uneven surfaces, stoop, bend, or carry any added load. Examination revealed range of motion from 0 to 110 degrees on the right and 0 to 100 degrees on the left. There was pain with motion, and the Veteran was unable to perform a full squat due to pain. There was no additional limitation after repetition. The knees were stable to ligament testing. The Veteran was assessed with chrondromalacia patellae. An August 2006 magnetic resonance imaging (MRI) of the left knee showed "no significant findings," though the possibility of a strain or tear could not be excluded. The interpreting radiologist assessed the Veteran with tears, or possible tears, of the lateral meniscus, medial meniscus, and lateral collateral ligament and degenerative changes. A November 2006 VA treatment record reflects the Veteran's history of increased left knee pain which was severe with sitting in a car or standing for long periods of time. He also reported "some" popping and clicking. Examination revealed range of motion from 0 to 130 degrees, with pain on extreme flexion. McMurray's testing was negative albeit painful. The knee was stable to varus and valgus stress and drawer, and Lachman's tests were negative. A March 2007 VA examination record reflects the Veteran's history of bilateral knee pain, stiffness, and tenderness and occasional swelling and giving way. He reported use of a brace. He indicated that he was able to do his normal job and normal daily activities. Testing revealed motion from 0 to 135 degrees bilaterally. There was pain throughout, particularly on the last 30 degrees of flexion. There was increased aching, pain, soreness, tenderness, and fatigability after repetition, but no additional limitation of motion. He reported flare-ups with increased symptoms which last a "day or two." The knees were stable to medial and lateral and anterior and posterior testing. The Veteran was diagnosed with bilateral chondromalacia with internal derangement of the left knee. A November 2008 VA treatment record reflects the Veteran's history of intermittent swelling and pain and catching and giving way in the left knee. The Veteran reported that he had been unable to perform his work duties for the previous eight days due to knee pain. Examination revealed no effusion and mild crepitus. McMurray's test was positive, but Lachman's and drawer testing were negative. Varus and valgus stress tests revealed no ligamentous laxity. The examiner noted that a 2006 magnetic resonance imaging (MRI) of the knee revealed a tear of the anterior horn and assessed the Veteran with symptomatic tear of the lateral meniscus. A December 23, 2008, VA treatment record indicates that the Veteran underwent a left knee arthroscopy and patellofemoral chondroplasty. The record reflects the Veteran's history of pain, locking, catching, and intermittent swelling. Examination revealed intact ligaments. There was 1 quadrant of laxity in the medial and lateral directions. The Veteran was assessed with intact lateral meniscus, intact medial meniscus, intact anterior cruciate ligament, grade 3 lesion of the medial facet of the patella, and generalized fraying of the underside of the patella cartilage. A January 2009 VA physical therapy record reflects the Veteran's history of pressure and soreness around the left knee. Range of motion was within normal limits. The record notes that the Veteran had relief from the reported pressure after stretching his quadriceps. A February 2009 VA physical therapy record reflects the Veteran's history of left knee pain of 1/10. He indicated that he felt "good." The record notes that active range of motion was within normal limits, with no movement restriction. There was no instability and no increased pain after exercises. A March 2009 VA treatment record reflects the Veteran's history of no improvement since undergoing a left knee arthroscopy four months earlier. The Veteran did report that he was ready to go back to work full-time, however. Examination revealed minimal effusion. There was significant crepitus with motion and significant pain with patellofemoral loading. A June 2010 VA treatment record reflects the Veteran's history of constant popping and increased pain in the left knee. He also reported that the knee "sometimes" gave out. Examination revealed crepitus of the right knee. The Veteran was assessed with chronic right knee pain. A subsequent June 2010 VA treatment record reflects the Veteran's history of "trouble with his right knee, unable to ambulate." The Veteran indicated that he took leave from work for three days. Examination revealed no crepitus, full range of motion, negative anterior drawer test, and tenderness below the patella. The Veteran was assessed with chronic left knee pain and provided a knee sleeve. An October 2010 VA examination record reflects the Veteran's history of knee pain, weakness, and stiffness. He indicated that he wore a brace on his left knee. He reported that he was able to accomplish his daily activities. Examination revealed motion from 0 to 140 degrees. There was pain on motion but no additional limitation after repetition. The Veteran reported weekly flare-ups which resulted in an increase in pain from 3/10 to 7/10 for a few hours. He explained that he resolved the flare-ups with Tylenol, rest, and elevation. The knee was stable to varus and valgus stress, and there was no warmth or effusion. Anterior and posterior drawer, Lachman's, and McMurray's tests were negative. There was significant crepitus and pain with patellar compression. The Veteran was diagnosed with chondromalacia. A March 2011 VA treatment record reflects the Veteran's history of taking leave under the Family Medical Leave Act (FMLA) twice that week due to pain. A June 2011 VA treatment record reflects the Veteran's history of missing work twice that week due to left hip and bilateral knee pain. The record reflects the Veteran's request that his FMLA paperwork be amended to show "one to three days per week and one to three episodes per month." A July 2011 VA treatment record reflects the Veteran's history of knee pain. Exam revealed stable knees and negative anterior and posterior drawer tests. The record notes that the Veteran wanted his leave of absence increased to "two to three" days each week. The record further notes that the Veteran had failed to report to four orthopedic consultations. The Veteran was instructed to follow through with the orthopedic clinic. An April 2012 VA treatment record reflects the Veteran's history of popping and increasing pain in the knees. Exam revealed no edema. There was tenderness of the left knee. The knees were stable to varus/valgus stress, and anterior and posterior drawer tests were negative. The knee disabilities are each rated at 10 percent, except for a temporary total evaluation for the left knee from December 23, 2008, to March 1, 2009 Under DC 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability, a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. A rating in excess of 10 percent is not warranted under DC 5257 for either knee because the preponderance of the probative evidence does not suggest that either knee disability results in worse than slight recurrent subluxation or lateral instability. Although the record includes the Veteran's histories of "giving way," evidence that the Veteran uses braces on the knees, and a finding of left knee laxity on December 23, 2008, the evidence consistently indicates that the knees are stable to all testing and there is no medical evidence of subluxation. The Board acknowledges that the Veteran is competent to report "quite frequent" giving way, the Board finds this history is less credible, and thus less probative, than the consistently normal medical findings with respect to stability. Based on the medical findings, the Board finds neither knee disability approximates moderate recurrent subluxation or lateral instability; thus, a higher rating is not warranted under DC 5257 for either knee. A separate rating is additionally not available based on limitation of extension or flexion. See VAOPGCPREC 23-97; VAOGCPREC 9-2004. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260-61. Under DC 5260, a noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45º, a 20 percent rating is assigned for flexion limited to 30º, and a 30 percent rating is assigned for flexion limited to 15º. DC 5261 provides a noncompensable rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10º, a 20 percent rating for extension limited to 15º, a 30 percent rating for limitation to 20º, and a 40 percent rating for limitation to 30º. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The appropriate rating for limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); 38 C.F.R. §§ 4.40, 4.45. The range of motion of each knee is consistently too significant to warrant a compensable rating for either limitation of extension or limitation of flexion: the medical evidence documents that the Veteran can flex to at least 100 degrees in the left knee and 110 degrees in the right knee and extend to at least 0 degrees. The Board acknowledges that the evidence includes histories of pain on use and functional impairment. However, even if range of motion was limited by pain beyond that shown during examination, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case it does not. Specifically, the range of motion demonstrated by the Veteran so greatly exceeds what would be required for even a noncompensable rating that it would be illogical to conclude that pain so functionally limited the range of motion that it would approximate the criteria for a compensable rating under DC 5260 or 5261. As such, a separate rating is not warranted for either knee under DC 5260 or 5261. The Board has also considered whether a higher or separate rating is warranted under an alternate orthopedic diagnostic code. Initially, the Board notes that the neither knee disability is manifested by impairment of the tibia and fibula or genu recurvatum. As such, DC 5262 and 5263 are not for consideration. Furthermore, there is no probative evidence of dislocated semilunar cartilage in the right knee, and although the record includes a finding of tears in the left semilunar cartilage, this finding was disputed by a subsequent arthroscopy, and the Board finds the arthroscopic findings of intact menisci are more probative than the 2006 radiologist's interpretation of the MRI. As such, a higher rating is not warranted under DC 5258. Finally, a separate rating is not warranted under DC 5003, which provides a 10 percent rating for arthritis, established by X-ray findings, resulting in limitation of motion due to pain, spasm, or swelling that is otherwise noncompensable under the rating criteria. The record includes no diagnosis of arthritis or X-ray findings of arthritis in either knee. The Board acknowledges that the 2006 MRI report shows degenerative changes in the left knee and that the record shows pain with flexion. Even assuming this finding satisfies the "proof" of arthritis requirement, however, range of flexion in the left knee is too significant to approximate the noncompensable rating under DC 5260, even after consideration of pain on motion. Thus, the Board finds a compensable rating is not warranted under DC 5003. The Board has considered whether a separate rating is warranted under any other diagnostic code but finds none is warranted. Although the evidence reflects findings of scarring of the right knee as a result of surgical treatment of the right knee, service connection was established for scarring of the right knee in a now final decision. See September 2006 rating decision. As such, the Board will not consider the right knee scarring in adjudicating this matter. With respect to the left knee, although the record indicates that the Veteran underwent a left knee arthroscopy, there is no evidence of scarring which might warrant a separate compensable rating. See 38 C.F.R. § 4.118. The Board has also considered whether extraschedular consideration is warranted based on the evidence of occupational impairment secondary to the knee disabilities. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the Veteran's knee disabilities are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the knee disabilities are primarily manifested by pain and instability. Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO provided the appellant pre-adjudication notice by letter dated in August 2007. Additionally, VA has obtained treatment records, assisted the appellant in obtaining evidence, afforded the appellant examinations, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board acknowledges that the record reflects the Veteran's histories of worsening symptoms since the most recent VA examination in October 2010. The record does include up-to-date VA treatment records, however. Furthermore, it indicates that the Veteran was scheduled for another VA examination and notified of the date and time of this examination but failed to report. He has not indicated that he would report for a new examination. As such, the Board finds the appellant is not prejudiced by a decision on the claims at this time. ORDER A rating greater than 10 percent is not warranted for a left knee disability. A rating greater than 10 percent is not warranted for a right knee disability. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs