Citation Nr: 1311057 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 08-13 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for degenerative joint disease of the left knee status-post partial lateral meniscectomy, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from June 1978 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, the Veteran withdrew his request for a Board hearing. See 38 C.F.R. § 20.704(e) (2012). This case was remanded by the Board in April 2012 for further development. FINDING OF FACT Degenerative joint disease of the left knee status-post partial lateral meniscectomy is manifested by the functional equivalent of flexion greater than 15 degrees. The current rating contemplates complaints of pain and locking. No instability has been clinically confirmed. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for degenerative joint disease of the left knee status-post partial lateral meniscectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in January 2007 and February 2009, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records/VA examinations, and identified private medical records. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). LEGAL CRITERIA Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Diagnostic code 5257 refers to other impairments of the knee. An evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, and evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Diagnostic code 5258 applies to dislocated semi lunar cartilage with frequent episodes of locking, pain, and effusion into the joint. A 20 percent rating applies for this disability. Diagnostic code 5259 applies to removal of symptomatic semi lunar cartilage. A 10 percent rating applies for this disability. Diagnostic Code 5260 pertains to limited flexion of the knee. A 10 percent rating is applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limitation of extension of the knee. A 10 percent evaluation is assigned for extension that is limited to 10 degrees. A 20 percent evaluation is assigned for extension that is limited to 15 degrees. A 30 percent evaluation is assigned for extension that is limited to 20 degrees. A 40 percent evaluation is assigned for extension that is limited to30 degrees. A 50 percent evaluation is assigned for extension that is limited to 45 degrees or greater. The VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 (which provides for a 10 percent rating for a noncompensable limitation of motion or painful motion of an affected joint) and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Also, separate rating may be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). ANALYSIS The Veteran appeals the denial of a rating higher than 20 percent for degenerative joint disease of the left knee status-post partial lateral meniscectomy. His disability is rated under Diagnostic Code 5010-5260. 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. 38 C.F.R. § 4.27. Diagnostic Code 5010 addresses arthritis due to trauma, while DC 5260 addresses limitation of flexion of the knee. The current rating contemplates periarticular pathology productive of painful motion. 38 C.F.R. § 4.59. Consideration is also given to additional limitation on repetition related to pain, fatigue, incoordination, weakness or lack of endurance. DeLuca, supra, 8 Vet. App. 202. The rating criteria is also consistent with flexion limited to 30 degrees. To warrant a higher rating the evidence must show the functional equivalent of flexion limited to 15 degrees or less. See DeLuca, supra. In the January 2007 VA examination, the Veteran had pain free range of motion from 0 to 130 degrees bilaterally. He had normal Lachman, posterior drawer and stability with varus and valgus stress bilaterally. He was tender to palpation along the medial joint line bilaterally. There was no crepitus on examination and negative McMurray's bilaterally. Range of motion testing was not additionally limited following repetitive use on examination. Early left knee arthritis was diagnosed. In the November 2007 VA examination, the Veteran complained of left knee pain. He reported that the knee locked and felt unstable. He denied swelling. Examination revealed a moderate degree of bony swelling. Patellar compression demonstrated crepitus but no pain. He had full extension of 0 degrees and could flex to 130 degrees all with end range pain but not additionally limited following repetitive use on examination. The knee was stable to the Lachman test, drawer test and varus valgus stress testing. The knee was tender over the medial joint line and demonstrated crepitus. McMurray's test was normal. Degenerative joint disease of the left knee was diagnosed. The Veteran was afforded another VA examination in June 2009, during this examination he reported decreased strength and range of motion but increased instability with locking and constant pain since his last examination. Range of motion of the left knee was 0 to 90 degrees with pain. The left knee was stable with Lachman. There was palpable tenderness over the medial joint space with grade-one crepitus. McMurray was positive for lateral meniscal derangement as well as medial meniscal derangement. Left lateromedial meniscal derangement with surgery, left medial meniscal derangement and left degenerative joint disease of the knee was diagnosed. No meniscal tears were shown in August 2009. The Veteran reported left knee swelling in December 2009. Physical therapy notes of March 2010 revealed continued complaints of left knee pain. No instability was noted in October 2011. In the April 2012 VA examination, the Veteran flexed to 95 degrees with pain at 95 degrees. Extension was full and he was able to perform repetitive use testing. There was no additional limitation in range of motion following repetitive testing. There was less movement than normal and pain on movement, however, with repetitive testing. There was tenderness or pain to palpation for joint line or soft tissues. A history of meniscal tear with frequent episodes of joint locking and pain was noted. His surgical scars were not painful and/or unstable and did not exceed 39 square cm. Based on the evidence presented, the Board finds against the claim. In this regard, at worst, the evidence reveals flexion of the left knee limited to 90 degrees which was shown after repetitive movement. These findings do not justify an evaluation higher than 20 percent disabling based on limitation of flexion. The Board has also considered whether the Veteran would be entitled to a separate rating pursuant to Diagnostic Code 5259, which provides a 10 percent rating for symptomatic removal of the semilunar cartilage. While the Veteran had a medial meniscectomy his symptoms, consisting primarily of pain and locking, are already compensated for by the 20 percent rating assigned pursuant to Diagnostic Code 5010-5260. When considering separate ratings under different diagnostic codes generally, VA must avoid pyramiding, i.e., evaluating the same disability under different diagnostic codes or evaluating the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14. With regard to rating disabilities of the knee, VA's general counsel (GC) has issued two opinions indicating that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOGCPREC 9-98 (August 14, 1998). In VAOGCPREC 9-98, GC found that limitation of motion is a relevant consideration under DC 5259. As limitation of motion is a relevant consideration under Diagnostic Code 5259, separate ratings are not warranted under Diagnostic Code 5259 and Diagnostic Codes 5010-5260. The Board has considered whether a separate compensable evaluation is warranted based on limitation of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. It is shown, however, that the Veteran has retained full extension throughout this appeal. Although the Veteran has complained of instability (DC 5257), objective findings show that the left knee is stable. As such, a separate rating is not warranted for limitation of extension and/or instability. Furthermore, the evidence is devoid of a showing of ankylosis (DC 5256), or impairment of the tibia and fibula (DC 5262). As such, these diagnostic codes are not applicable. The Board has also considered whether the Veteran met the criteria for a separate compensable rating for the scar on his left knee. Under the diagnostic criteria for scars, a compensable rating requires a deep, nonlinear scar that is at least 6 square inches in size, a superficial nonlinear scar of at least 144 square inches, or a scar that is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code7801-7804. The Veteran's scar is shown to be stable and not painful and less than 144 square inches in size. As such, the scar is not of the size and/or severity to warrant a compensable rating. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain, swelling, locking and instability. The Veteran is competent to report such symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board has also considered the pleadings and reports, and finds that the Veteran is credible in reporting the severity of his disability. The more credible and probative evidence, however, is devoid of a showing that left knee flexion is functionally limited to 15 degrees or less. Past examinations disclosed some limitation, but nothing approximating the functional equivalent of limitation of flexion to 15 degrees or less. Although the Veteran has knee pain, pain is considered in the current evaluation. See 38 C.F.R. § 4.59. Neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation, i.e., the functional equivalent of flexion limited to 15 degrees or less. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Board finds no other provision upon which to assign a higher rating. Accordingly, the claim is denied. The Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology to include pain, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER A rating higher than 20 percent for degenerative joint disease of the left knee status-post partial lateral meniscectomy is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs