Citation Nr: 1311852 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-28 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals of a left knee medial meniscus surgical repair. ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from June 1996 to June 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted entitlement to an increased, 10 percent evaluation for the left knee disability, effective July 2, 2009. Service connection was granted in a September 2008 rating decision, and a noncompensable evaluation assigned from May 5, 2008. The Board has considered whether the currently appealed decision must be considered part of this original claim. However, no additional new and material evidence was submitted within one year following the September 2008 decision; the Veteran made her claim within that period, but submitted no evidence, not even in the form of specific lay evidence, which could be considered. 38 C.F.R. § 3.156(b). Accordingly, the current appeal stems from a claim for increase, and not an original claim. A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU), where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). No TDIU claim is inferred as part of this appeal, as the issue was separately adjudicated in a September 2012 decision, which has not been appealed at this time. During the pendency of the appeal, the RO granted service connection for surgical scars of the left knee, rated 0 percent disabling from May 5, 2008. The Veteran has not appealed any aspect of this decision, and the issue is not considered part of the appeal. FINDINGS OF FACT 1. Residuals of a left knee medial meniscus surgical repair have been manifested by periodic swelling and painful limited motion in flexion, with recent x-ray evidence of degenerative changes. 2. The competent and credible evidence of record does not show any recurrent instability or subluxation of the left knee, nor is there evidence of locking, limited extension, ankylosis, or tibial or fibular involvement. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for residuals of a left knee medial meniscus surgical repair are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). An August 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran's service treatment records and VA medical treatment records have been obtained; she did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in 2009, 2011, and 2012; the examiners made all findings necessary for application of the Rating Schedule and evaluation of the left knee disability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations are adequate for adjudication. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran is service-connected for the post-surgical residuals of a left knee meniscus injury. She maintains that the assigned 10 percent evaluation is not sufficient. VA treatment records from 2007 to 2012 note occasional complaints of knee pain. In June 2011, she reported falling when her left knee locked. No other episodes of locking are noted in treatment records, and doctors repeatedly note the absence of swelling. At a September 2009 VA contract examination, the Veteran reported that she experienced pain, weakness, stiffness, giving way, fatigability, and a lack of endurance in the left knee. Symptoms flared up with rainy weather, or when sitting or standing for long periods; such increases occurred daily. She treated herself with over the counter NSAIDS, and reported use of a cane when the knee hurt. The Veteran reported that she had trouble going down steps; she felt like her left knee was going to give out. However, she denied a history of subluxation or dislocation. On physical examination, the left knee was painful with motion, and there was crepitus. Measured range of motion was from 0 degrees extension to 110 degrees flexion. Flexion to 140 degrees was possible, but very painful. Mild impairment of the medial and lateral collateral ligaments was noted. No additional functional impairment was demonstrated with repetitive motion, but pain, lack of endurance, and fatigability were noted. The examiner commented that painful motion, mild instability, tenderness, and guarding were observed. In June 2011, a second VA examination was conducted. The claims file was reviewed; the Veteran had injured the left knee medial meniscus when she slipped of a curb while running in service. She underwent arthroscopic surgery, but reported the knee still gave her trouble, particularly when stair climbing or sitting for long periods. Her knees would become stiff and painful. She reported that her problems are fairly constant, without periods of flare-up. The hours of sitting and standing at work in customer service bothered her knee. On examination, the Veteran had a mild limp. The left knee was mildly swollen, but there was no instability. Tenderness in the joint line was noted. Range of motion was from 0 to 130 degrees, with pain throughout the movement. Repetitive motion caused no additional functional impairment, though pain did increase. There was no incoordination, weakness, fatigue, or lack of endurance. X-rays, taken in August 2007, were normal. No updated films were made. The Veteran was most recently examined by VA in January 2012. Motion of the left knee was from 0 to 130 degrees; pain was present throughout movement. There was no additional functional impairment with repeated motion, however. Limited, painful motion with crepitus was observed, and the left knee was tender to palpation. The examiner found no evidence of instability of the joint, subluxation, or dislocation. In connection with the meniscal tear, episodes of pain and occasional swelling were reported. An x-ray showed early degenerative joint disease of both knees. There are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability. Code 5256 is utilized for evaluation of ankylosis or the functional equivalent, meaning that the joint is fixed and capable of no motion. As there remains motion of the left knee, this Code is not applicable here. While evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. No tibia or fibula impairment is shown here. 38 C.F.R. § 4.71a. Code 5257 evaluates disabilities of the knee based on the degree of recurrent subluxation and/or instability of the joint. Slight impairment merits a 10 percent evaluation. Moderate impairment warrants 20 percent. A 30 percent evaluation is assigned where the impairment is severe. 38 C.F.R. § 4.71a, Code 5257. There is no showing or allegation of any subluxation or dislocation here. The September 2009 VA examiner did report mild instability in the collateral ligaments, but no other care provider notes such, and the Board may not view any one piece of evidence in isolation of another. Other examiners specifically exclude instability, and there is no allegation or evidence of actual giving way. One fall is reflected, in June 2011, but the Veteran does not report instability or giving way in connection with it. She instead reports an instance of locking. Treatment records contain no references to any instability, though the Veteran did seek treatment for pain. At most, the Veteran has reported a feeling, sensation, or fear of such. The weight of the evidence demonstrates no recurrent left knee impairment manifested by instability at any time during the appellate period, and hence a compensable evaluation under Code 5257 is not warranted. Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci, which is the underlying left knee injury here. Code 5258 provides a 20 percent evaluation for frequent episodes of pain, locking, and effusion in the joint. 38 C.F.R. § 4.71a, Code 5258. Here, there is only a single complaint of locking of the joint, in June 2011; this was not objectively confirmed. While there are reports of effusion or swelling of the left knee, such episodes are not shown to be frequent. Only one examiner notes swelling, and treatment records repeatedly report no swelling. The long-term evidence of record shows that there are no "frequent" episodes, despite the statement, apparently based on the Veteran's report, in January 2012. Moreover, the pain which is clearly present is more closely associated with movement, and hence is more appropriately rated in connection with a Code related to motion, as discussed below. Consideration of the symptom under multiple Codes would constitute prohibited pyramiding. 38 C.F.R. § 4.14. Code 5259 governs postoperative meniscal damage, and assigns a 10 percent evaluation for "symptomatic" disability. 38 C.F.R. § 4.71a, Code 5259. Specific symptoms are not specified, and the Board finds that those which are present are subsumed by the criteria of other Codes, which are more beneficial to the Veteran. They allow for ratings in excess of 10 percent. For limitation of motion, there are three potentially applicable Diagnostic Codes. Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is for assignment when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Code 5261. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, Code 5003, for degenerative arthritis, provides that degenerative arthritis that is 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, as discussed above. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Code 5003. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Application of the minimal, 10 percent evaluation is consistent with the provisions of 38 C.F.R. § 4.59, even when there is no radiographic evidence of arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). VAOPGCPREC 9-04 provides that where a claimant has both limitation of flexion and limitation of extension of the same leg separate ratings under Diagnostic Codes 5260 and 5261 are warranted to adequately compensate for functional loss associated with injury to the leg. In contrast, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. The Veteran is currently rated 10 percent disabled. No examiner has noted a degree of limitation of motion in either flexion or extension which warrants assignment of a compensable evaluation under the criteria of Codes 5260 or 5261. Extension is consistently noted to be full, to 0 degrees, and flexion is limited to no worse than 110 degrees. While pain is present, it is limiting only to the extent reflected in measurements; in other words, while the entire range of movement causes pain, that pain does not impede movement until reaching 110 degrees of flexion. Neither it nor factors such as weakness, fatigue, lack of endurance, or incoordination have been shown to result in additional functional impairment. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). That pain does, however, warrant the assignment of a minimal 10 percent evaluation, as is currently assigned. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Unless the Schedular criteria are met under one of the applicable Codes, however, no higher evaluation is assignable for the left knee disability. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the Schedular criteria are fully adequate. The Schedule provides for higher evaluations than that currently assigned, for manifestations which are either not present or are currently of a lesser degree of severity. Further, the Schedule fully accounts for the demonstrated symptomatology of pain and limitation of motion. The Schedule also considers reported symptoms of instability, locking, and effusion, but in this instance provides no compensable evaluation due to the level of impairment shown. No further discussion of extraschedular evaluation is necessary. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Entitlement to an evaluation in excess of 10 percent for residuals of a left knee medial meniscus surgical repair is not warranted. ORDER An evaluation in excess of 10 percent for residuals of a left knee medial meniscus surgical repair is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs