Citation Nr: 1314183	
Decision Date: 04/30/13    Archive Date: 05/15/13

DOCKET NO.  10-07 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an effective date earlier than June 1, 2009, for assignment of a combined rating of 20 percent for a post-operative right knee disability.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran had active service from September 1977 to May 1979, and from October 2005 to February 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that continued a 10 percent rating for a right knee disability.  In a January 2010 rating decision, an RO decision review officer (DRO) awarded a 20 percent rating for the right knee disability, effective June 1, 2009.  The Veteran seeks an earlier effective date for the 20 percent rating.

In January 2013 the Veteran testified at a Board video conference hearing before the undersigned.  A transcript of the hearing is in the Virtual claims file and has been reviewed.

As indicated above, the Veteran also has a Virtual VA paperless claims file associated with his claim.  A review of the Virtual file reveals the documents therein, except for the hearing transcript, are duplicative of those in the paper file.


FINDINGS OF FACT

1.  VA received the Veteran's claim for an increased rating on April 16, 2008.

2.  The evidence of record shows that, on March 28, 2008, the Veteran's right knee disability was manifested by painful and limited motion (LOM) in addition to symptoms of lateral instability.


CONCLUSION OF LAW

The criteria for a 20 percent rating for right knee post-operative residuals have been met since March 28, 2008.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.159, 3.400(o)(2), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257-5260 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).   

At his hearing the Veteran testified that his appeal would be satisfied by the grant of a 20 percent rating for the right knee disability, effective the date of his claim for increase in April 2008.  This decision grants that benefit.  Further notice or assistance is not required to aid the Veteran in substantiating his claim.

The United States Court of Appeals for Veterans Claims (Court) has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) (2012) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  In view of the Board's favorable decision, further Bryant notice is not required.

Increased disability ratings

Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  

Separate diagnostic codes identify the various disabilities.  Id.  It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor.  38 C.F.R. § 4.3.  If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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 considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the Veteran's entire history is reviewed when assigning a disability rating, 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).  Additionally, in determining the present level of a disability for any increased rating 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.

The period for consideration in an increased rating claim is that beginning one year prior to the date of the claim for increase.  Id., 38 C.F.R. § 3.400(o) (2012).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).


Analysis

By way of history, the Veteran developed a right knee disorder in active service, the treatment for which included an arthroscopy.  A July 2007 rating decision granted service connection for mild lateral instability and assigned an initial 10 percent rating under DC 5299-5257, effective in February 2007.  

A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation.  See 38 C.F.R. § 4.27.  DC 5299 notes the Veteran's right knee was evaluated analogous to subluxation or lateral instability under DC 5257.  See 38 C.F.R. § 4.20.  

As indicated, subluxation or lateral instability is rated under DC 5257.  Those criteria provide for a 10 percent rating for slight symptoms; 20 percent for moderate symptoms; and, 30 percent for severe symptoms.  38 C.F.R. § 4.71a, DC 5257.

VA received the Veteran's current claim for an increased rating on April 16, 2008.  The Veteran asserted in his April 2008 claim that, even though he had again undergone surgery on the right knee, he still had LOM and limited use of the right knee, and he wore a full brace for lateral support at all times.

On March 28, 2008, the Veteran received private outpatient treatment, a report of which he submitted with his claim for increase.  The March 2008 record shows the Veteran complained of pain on any type twisting of the right knee, and pain when kneeling or squatting.  He reported difficulty climbing in and out of trucks, and he noticed some swelling as well.  The entry notes the Veteran's June 2007 arthroscopy entailed an extensive resection of the lateral meniscus.  

Physical examination revealed the right knee to be abnormal.  There was trace effusion, some lateral joint line tenderness, and slight patella tenderness.  McMurray's maneuver was painful over the lateral compartment, and the Lachman test was trace positive.  Drawer sign was 1+ positive, and there was pain on flexion beyond 110 degrees.  There was no varus or valgus laxity.  

The examiner diagnosed persistent right knee pain with lateral compartment severe chondromalacia; early osteoarthritis; and mild patellofemoral localized chondromalacia.  The examiner noted further arthroscopic surgery would not be helpful, and that the Veteran would eventually require a total replacement due to the lateral compartment arthritic disease.  

The report of a VA examination in May 2008, reflects that the examiner did not have access to the claims file.  The report also reflects; however, that the examiner took a full history from the Veteran and used it in rendering a diagnosis.  The Veteran reported he used a knee brace at all times.  He denied any incapacitating episodes due to arthritis or limitations standing; but he reported he was able to walk one-quarter mile.  Physical examination revealed the Veteran walked with an antalgic gait.  There was no grinding, effusion, patellar abnormality, dislocation, or locking.  

Range of motion (ROM) was 0 to 110 degrees, with onset of pain at 90 degrees.  Repetitive use testing revealed no change in ROM, and the ligaments were intact.  The examiner noted crepitation, clicks or snaps, and McMurray's test was positive.  The examiner also noted the meniscus was surgically absent.  X-rays were read as having shown decrease in the medial joint space.  Diagnosis was status post-medial menisectomy.  The significant occupational effects of the disorder were decreased mobility and strength.  In a May 2008 addendum to the examination report, the examiner noted that right knee ROM on extension was normal.

An August 2008 VA outpatient entry notes the Veteran's right knee was painful and unstable on motion.  He wore a brace to make it stable.  The Veteran underwent reconstructive surgery on the right knee in March 2009.  A March 2009 follow-up revealed ROM of 5 to 85 degrees with moderate pain and considerable swelling; and, 1+ effusion into the joint.  As a result, in a January 2010 rating decision, the DRO awarded a temporary 100 percent rating based on surgery or other treatment requiring convalescence for the period March 13 to May 31, 2009; and, assigned a 20 percent rating as of June 1, 2009.

The statement of the case (SOC) reflects the DRO assigned the 20 percent rating due to dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, see 38 C.F.R. § 4.71a, DC 5258, even though the cartilage had been surgically removed.  DC 5259 rates post-operative cartilage removal that is symptomatic with a maximum rating of 10 percent.  See 38 C.F.R. § 4.71a.

The VA General Counsel has interpreted the rating criteria as allowing separate ratings for symptomatology based on instability and that based on LOM, to include arthritis, where indicated by clinical findings.  See VAOPGCPREC No. 23-97 (July 1, 1997), cited at 62 Fed. Reg. 63,604 (1997).

Normal ROM for the knee is 0 to 140 degrees.  38 C.F.R. § 4.71a, Plate II.  Where service connection is already in effect for a disability, the effective date is the earliest date at which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year.  38 C.F.R. § 3.400(o)(2).

The Veteran's right knee disability was shown to be manifested by LOM with pain beyond 110 degrees in March 2008, and his claim was received the next month, April 2008.  When rating musculoskeletal disabilities based on LOM, a higher rating must be considered where the evidence demonstrates functional loss due to pain, weakness, excess fatigability, or incoordination, if those factors are not contemplated in the relevant rating criteria.  38 C.F.R. §§ 4.40, 4.45, and 4.59).  Additionally, the rule against pyramiding does not forbid consideration of a higher rating based on greater LOM due to pain on use, including during flare-ups.  38 C.F.R. § 4.14; DeLuca v. Brown, 8 Vet. App. 202 (1995).

Limitation of knee flexion is rated under DC 5260.  LOM on flexion to 60 degrees warrants a noncompensable rating; to 45 degrees, 10 percent; to 30 degrees, 20 percent; and, to 15 degrees, 30 percent.  38 C.F.R. § 4.71a, DC 5260.  

The Board notes that an October 2008 private medical record entry shows the Veteran had posttraumatic osteoarthritis.  Arthritis demonstrated on X-ray is rated on the basis of LOM of the affected joint.  If the LOM is noncompensable, then a 10 percent rating is warranted for each major joint.  38 C.F.R. § 4.71a, DC 5003.  

Aside from the presence of arthritis, however, VA policy is to rate actually painful motion as warranting at least the minimum compensable rating.  38 C.F.R. § 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011) and Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  

Although arthritis was not documented at the time of the March 2008 treatment, the provisions of 38 C.F.R. § 4.59 would apply to any disability causing limitation of motion.  Burton v. Shinseki, 25 Vet. App. 1 (2011).  

Because the claim for increase was received on April 16, 2008, the period for consideration is that beginning one year prior to the date of claim.  Hart, 38 C.F.R. § 3.400(o).  The March 28 treatment record shows that it was first factually ascertainable that the Veteran had painful motion in addition to indications of mild knee instability.

At that point the Veteran met the criteria for separate 10 percent ratings for limitation of flexion and instability.  These ratings would combine for a 20 percent rating.  See 38 C.F.R. § 4.25, Table I.  Since March 28, 2008 was within one year of the date of the claim, he is entitled to a 20 percent rating as of that date.

The assignment of a particular DC is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  But any change in a DC VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Board finds the evidence of record shows a separate rating of 10 percent should be indicated under DC 5257-5260 as of April 16, 2008.  The hyphenated DC shows the LOM under DC 5260 is associated with the right knee instability which is rated under DC 5257.  See 38 C.F.R. § 4.27.  

The Board does not further address the rating, as the Veteran has clearly indicated that he is limiting his appeal to the 20 percent rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (although a claimant is presumed to be seeking the maximum benefit under law, he can choose to limit the claim to a lesser benefit).


ORDER

Entitlement to a combined rating of 20 percent for right knee post-operative residuals is granted, effective March 28, 2008.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs