Citation Nr: 1312864 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-46 401 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 20 percent for meniscal tear of the left knee. ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to June 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision, by the Roanoke, Virginia, Regional Office (RO), which assigned a temporary total rating for a period of convalescence from December 12, 2007 to February 12, 2008, but denied a schedular rating in excess of 20 percent for medial meniscal tear of the left knee. The Veteran perfected a timely appeal of the denial of a higher schedular rating; the question of extension of the temporary total rating is not on appeal. In September 2012, the Board remanded the case for further evidentiary development. A review of the record reflects compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in February 2013. The Veteran's VA claims file has been returned to the Board for further appellate consideration. FINDING OF FACT The Veteran's left knee disorder has been manifested by complaints of pain and episodes of locking, with objective findings of pain with motion, tenderness, and some limitation of motion (0 degrees of extension and 100 degrees of flexion, at its most limited state), and the use of a brace; there is no X-ray evidence of degenerative arthritis and no evidence of ankylosis, subluxation, or lateral instability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for meniscal tear of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257, 5260, 5261 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in October 2008 from the RO to the Veteran which was issued prior to the RO decision in January 2009. An additional letter was issued in October 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that she has not identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested with respect to the claim at issue. The Veteran has been afforded VA examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are collectively adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Findings necessary to apply the criteria for rating the left knee disorder have been made. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in obtaining evidence pertinent to her claim. Therefore, no useful purpose would be served in remanding the claim for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background By a rating action in September 2005, the RO granted service connection for meniscal tear of the left knee, evaluated as 20 percent disabling, effective January 10, 2005, under Diagnostic Code (DC) 5257. In a statement, dated in October 2008, the Veteran requested an increased rating for her left knee disorder. She indicated that the condition of the left knee had worsened to the point that she required arthroscopic surgery in December 2007; she went through physical therapy and pain management. The Veteran indicated that she also received a series of shots in the knee, which provided cushioning due to the degeneration and patella mistracking. Submitted in support of the Veteran's claim were treatment reports from the Orthopedic and Spine Center dated from November 2007 to June 2008. These records show that the Veteran received follow-up evaluation for chondromalacia of the patella. These records indicate that the Veteran underwent arthroscopy with lateral release in December 2007. While she completed physical therapy, and pain management, she continued to experience left knee pain. During a clinical visit in February 2008, it was noted that the Veteran had no outward signs of an effusion, but she still had chronic atrophy of the vastus medialis. She had full motion to her knee and no joint line tenderness. She was placed into a patellar stabilizing brace to help her develop her musculature. The Veteran was afforded a VA examination in November 2008. At that time, she reported problems with weakness, swelling, giving way, lack of endurance, locking and dislocation. She denied any stiffness, heat, redness and fatigability. She reported pain in the knee in the inner joint--behind the patella and outer joint, which occurs constantly. The Veteran indicated that the pain travels down the leg. She described the pain as sharp with a severity level at 7 on a scale from 1 to 10. She stated that the pain is caused by physical activity and comes spontaneously; it is relieved by rest and medication. At the time of pain, she is able to function with medication. She had arthroscopic surgery in December 2007, followed by physical therapy and injections of gel to provide cushioning. The Veteran stated that she could not run without injuring the knee further. Squatting hurts, and stairs cause some problems. She noted that the knee sometimes locks when she is in the same position for a prolonged period; then pain occurs. On examination, it was noted that there were 2 level small scars located on each side of the left knee joint measuring about 0.5 cm by 0.5 cm. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, or abnormal texture. Gait and posture were within normal limits. The left knee had patellar inhibition tenderness and crepitus. The left knee showed no signs of edema, effusion, weakness, tenderness, redness, heat or guarding of movement. There was no subluxation. There was no genu recurvatum or locking pain. Range of motion in the left knee was from 0 degrees to 140 degrees. After repetitive use, the joint function on the left was additionally limited by lack of endurance. The joint function was not additionally limited by pain, fatigue, weakness or incoordination. There was no additional limitation in degree. The anterior and posterior cruciate ligaments stability test of the left knee was within normal limits. The medial and lateral collateral ligaments stability test of the left knee was within normal limits. The medial and lateral meniscus test of the left knee was within normal limits. X-ray study of the left knee was within normal limits. The diagnosis was meniscual tear of the left knee, status post arthroscopic surgery with scars. The only effect of the disability on the Veteran's daily activity was her inability to do squats. Received in December 2008 were treatment reports from the Orthopedic and Spine Center dated from November 2007 to September 2008. These records show that the Veteran received follow-up evaluation and treatment for her left knee disorder. An MRI of the left knee, performed in June 2008, revealed findings compatible with posterior horn medial meniscus degeneration without evidence of a tear or joint effusion. Received in October 2012 were treatment reports from the Orthopedic and Spine Center dated from October 2006 to January 2012. The records show that the Veteran received periodic injections in the left knee as a course of treatment following her arthroscopic surgery. The Veteran was afforded another VA examination in October 2012. The Veteran indicated that, since the surgery in 2008, she was unable to run and she can only walk at her own pace. The Veteran noted that she was unable to squat and she experienced pain with climbing stairs. The Veteran indicated that she received a Supartz injection in 2009; and she goes every 6 months and gets a series of 5 injections, each one week apart. The Veteran also reported that, since her surgery in 2008, she had to have fluid drained once over the last 4 years. She stated that the pain in the knee sometimes shoots up her thigh area or down her shin area while sitting up; she noted that the pain sometimes last for days. The Veteran reported having daily pain with an intensity of a 3 out of 10; she also noted that the knee locks up and gives out on her sometimes with overuse, causing her to fall if she does not sit down. The Veteran reported having flare-ups almost daily with climbing, bending, squatting and prolonged walking. She stated that, when she gets flare-ups, she has to limit weight bearing to that knee from a few hours to a couple days. She also reported discomfort in the knee with palpation and manipulation. On examination, it was noted that the left knee had a flexion to 140 degrees, with objective evidence of painful motion beginning at 100 degrees. Extension was to 0 degrees, with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing, following which she had a range of motion of 140 degrees of flexion and 0 degrees of extension. There was no additional limitation in range of motion of the knee and lower leg following repetitive-use testing. The examiner noted that the Veteran had pain with movement and tenderness. There was no history of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran has pain and tenderness with motion and palpation of the left knee. The examiner noted that the Veteran had scars, but the total area of the scars was not greater than 39 sq. cm. The examiner further noted that the Veteran was using a brace on her left knee when she walks her dog or rides her bike or works out. X-ray study of the left knee revealed no evidence of fracture or dislocation, and there was normal anatomic alignment; the joint spaces were well maintained. The impression was normal knee radiographs. The pertinent diagnosis was left knee patellofemoral syndrome. The examiner noted that the Veteran was a medical biller; she stated that she cannot do a job that requires her to be standing all day because of her knee and her back. III. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). The provisions of 38 C.F.R. § 4.1 require that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. The regulation at 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the Veteran's working or seeking work. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. 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 concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the Board has concluded that the left knee disability has not significantly changed and that a uniform evaluation is warranted. The Court has held that 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 (2012) and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (2012). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40 (2008). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45 (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran's meniscal tear of the left knee has been evaluated as 20 percent disabling under Diagnostic Code 5257 for "recurrent subluxation or lateral instability." The criteria for that diagnostic code provide for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability, which is the maximum schedular rating for this disability. 38 C.F.R. § 4.71a (Diagnostic Code 5257) (2012). In this case, while the Veteran reported to have symptoms of giving way in her left knee at the November 2008 VA examination, the examiner observed no evidence of instability when evaluating the left knee. During the examination, the examiner noted that the anterior and posterior cruciate ligaments stability test of the left knee was within normal limits. The medial and lateral collateral ligaments stability test of the left knee was also within normal limits. The medial and lateral meniscus test of the left knee was within normal limits. X-ray study of the left knee was within normal limits. In addition, during the October 2012 VA examination, while the Veteran reported giving out of the knee that occasionally causes her to fall and the need to wear a knee brace, there was no history of recurrent patellar subluxation or dislocation. Given the normal VA examinations, as well as the fact that the Veteran was assessed with normal stability in her left knee, there is no basis to find that a compensable rating would be warranted under DC 5257. The Board acknowledges the June 2008 private MRI reports which reflect findings of slight lateral patellar subluxation, the DC contemplates knee instability or subluxation. Such a problem has not been shown. The Board has also considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, etc. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an increased evaluation for the Veteran's service-connected left knee is not warranted on the basis of functional loss due to pain or weakness as the Veteran's symptoms are contemplated by the 20 percent rating already assigned. In this regard, the Board observes that the Veteran has complained of pain, weakness and intermittent locking in her left knee. The Board further acknowledges objective evidence of pain following repetitive range of motion, as well as the Veteran's complaints of pain when climbing a staircase, and with prolonged sitting or standing. However, the November 2008 and October 2012 examiners noted no objective evidence of functional loss or additional limitation of motion following repetitive motion that would warrant a compensable rating under DC 5260 or 5261. (A 10 percent rating is warranted when flexion is limited to 45 degrees or extension is limited to 10 degrees.) Even when the Veteran's complaints are considered, the examiners has addressed functional losses with repetitive tests and have not found disability tantamount to such limitation of motion. Thus, the Board finds that the effect of the pain and symptoms complained of by the Veteran are contemplated in the 20 percent disability evaluation. Because there is no evidence of additional limitation due to weakness, fatigability, incoordination, or lack of endurance, there is no basis upon which to award a greater disability evaluation pursuant to 38 C.F.R. §§ 4.40 and 4.45. The Board also finds that the current 20 percent disability evaluation fully contemplates her complaints of pain and the limitations imposed by that pain. There is no indication that the Veteran's complaints of pain have caused additional functional impairment that would warrant an evaluation in excess of the currently assigned 20 percent rating. Although scars have been identified as due to the arthroscopic procedure, the Board has also considered whether a separate rating is available for scarring. In describing the scars, the examiner noted that no scar was painful, unstable nor greater than 39 square (sq.) cm in length. The Board notes amendments were recently made to the rating criteria for skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), a compensable rating for a scar will only be evaluated under the rating criteria in effect prior to October 23, 2008. Id. See also 38 C.F.R. § 4.118. A compensable rating under DC 7801, which evaluates impairment for scars other than the head, face, or neck scar requires that the scar be deep or cause limitation of motion and exceeds 6 sq. inches (39 sq. cm.). The Veteran's scar does not meet those criteria. A compensable rating under DC 7802 for superficial scars that do not cause limitation of motion requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown. Scars that are unstable warrant a 10 percent rating under DC 7803. A note under DC 7803 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. The Veteran's scar has not been described as unstable, rendering DC 7803 inapplicable. As previously noted, the scar was not painful on examination, so DC 7804 is also inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a rating pursuant to DC 7805 is not warranted. As such, a separate compensable rating for scarring on the left knee is not warranted. See 38 C.F.R. § 4.118, DCs 7801-7805. The above determinations are based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's left knee disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (1) (2012). The symptoms of her disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In fact, during the October 2012 VA examination, the examiner specifically stated that the Veteran's left knee disability did not cause any functional impairment. Consequently, the Board finds no basis for referring the left knee issue for consideration of an extraschedular rating. ORDER Entitlement to a rating in excess of 20 percent for meniscal tear of the left knee is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs