Citation Nr: 1314316 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-39 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for left medial collateral ligament and Segond fracture with chondromalacia patella, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The July 2011 VA examination indicates that the Veteran is currently employed. As such, the issue of entitlement to a TDIU is not raised by the record at this time. FINDING OF FACT 1. Severe recurrent subluxation or lateral instability of the left knee has not shown at any time during the appeal period. 2. The Veteran has been diagnosed as having post-traumatic degenerative joint disease of left knee that results in pain on motion; however, even in considering his complaints of pain and functional loss, limitation of flexion to 45 degrees and/or extension to 10 degrees has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 20 percent for left medial collateral ligament and Segond fracture with chondromalacia patella have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003, 5257 (2012). 2. The criteria for entitlement to a separate 10 percent rating for left knee arthritis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5003-5010, 5260, 5261 (2012); VAOPGCPREC 23-97. REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in January 2009 of the criteria for assigning ratings for the knee, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in April 2009. As for VA's duty to assist, the Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has undergone VA examinations that addressed the medical matters presented by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the February 2009 and July 2011 VA examinations obtained in this case are adequate, as they included an examination of the Veteran and elicited his subjective complaints. The VA examinations have described the Veteran's disability on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disability. In short, the Board finds that VA's duty to assist in obtaining a VA examination with respect to the left knee increased rating issue has been met. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. By rating action in July 1993, service connection was granted for left medial collateral ligament and Segond fracture, with chondromalacia patella. A 10 percent rating was assigned under Diagnostic Code 5257. In March 1997 the RO assigned a 20 percent rating for the Veteran's left knee disability. The RO essentially determined that there was evidence of moderate instability. The Veteran's claim for an increased rating for service-connected left knee disability was received on December 24, 2008, and the rating period on appeal is from December 24, 2007, one year prior to the date of receipt of the increased rating claim. 38 C.F.R. § 3.400(o)(2). As for Diagnostic Code 5257, a 10 percent rating contemplates slight knee impairment due to recurrent subluxation or lateral instability. A 20 percent rating contemplates moderate impairment due to recurrent subluxation or lateral instability, and a maximum 30 percent rating is warranted for severe impairment of the knee. However, VAOPGCPREC 23-97 provides that a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 9-98. Numerous X-ray studies show that the Veteran has degenerative joint disease of the left knee. More specifically, a June 2009 X-ray described the Veteran as having post-traumatic degenerative joint disease, which a VA examiner has attributed to the Veteran's service connected knee disability/injury. See Report of VA examination dated in July 2011. Under Diagnostic Code 5010, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis 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. Standard motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A 10 percent evaluation is for application where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees, and a 30 percent rating applies where flexion is limited to 15 degrees. Diagnostic Code 5261 pertains to limitation of leg extension. Under that Code section, a 10 percent evaluation is for application where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. Under Diagnostic Code 5258, a 20 percent evaluation, the highest and only rating available under that schedular provision, may be assigned where there is evidence of dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the knee joint. Under Diagnostic Code 5262, a 20 percent evaluation is for assignment for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent evaluation is for assignment with marked knee or ankle disability. VAOPGCPREC 9-2004 (September 17, 2004) holds that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. Medical records (including February 2009 and July 2011 VA examinations) reveal diagnoses of status post left medial collateral ligament and Segond fracture with chondromalacia patella of the left knee. Left knee degenerative joint disease has also been noted, beginning in July 2002. The Veteran has stated that he has a constant pinching pain in the left knee that he characterized as "3/10 at baseline." He complains of morning left knee stiffness that lasts for 2 hours, and left knee instability, locking, effusion, and lack of endurance after 10 hours of work. The Veteran has indicated that he was not currently under active treatment for his left knee disability, but that he wears a molded knee brace four times per week and a sleeve brace that he wore daily. In a June 2009 statement the Veteran reported that he wore special shoes to alleviate his left knee pain; he also indicated that he would try to elevate his left leg to obtain relief. In his June 2009 notice of disagreement the Veteran stated that he had to rest his left knee more than he had wanted and indicated that he had some feelings of left knee instability even when wearing a knee brace. He essentially stated that he would have to rest during the weekends in order to control his left knee pain and swelling. In his October 2009 substantive appeal the Veteran indicated that he had to pay particular attention to his left knee, even when walking; he was limited to lifting objects that weighed 30-50 pounds. In a June 2011 statement the Veteran indicated that he was thankful that he had a custom made knee brace but would sometimes have to walk with a cane. As for Diagnostic Code 5257, the Veteran's left knee disability does not show severe instability. Consideration has been given to the Veteran's reports of instability as well as to the fact that he wears a knee brace. However, the February 2009 VA examination revealed that the Veteran's left knee was stable on anterior, posterior, medial, and lateral stressing. McMurray testing was within normal limits. The July 2011 VA examination similarly revealed that drawer testing and McMurray testing were normal. The treatment records do convey contradictory findings. Rather, a June 2009 VA left knee MRI revealed only slight lateral subluxation of the patella. A 30 percent rating under Diagnostic Code 5257 is thereby not warranted. Regarding the question of entitlement to separate evaluations, the Board calls attention to the provisions of VA General Counsel opinion 23-97 (VAOPGCPREC 23-97). That opinion provides that a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 9-98. A review of the medical evidence reveals that the Veteran's left knee degenerative arthritis has been associated with the Veteran's service-connected left knee disability. There is also ample evidence showing that the Veteran experiences pain on motion. Such supports the assigned of a separate compensable rating as per Diagnostic Code 5003-5010. The separate 10 percent rating for left knee arthritis is warranted throughout the entire appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Having established that a separate 10 percent evaluation is warranted for left knee arthritis under Diagnostic Codes 5003-5010, the Board must next consider whether the criteria for a higher rating have been met based on loss of range of motion. Here, as the Veteran's left knee flexion is to no less than 120 degrees (February 2009 VA examination) and the evidence has not shown any limitation of left knee extension, the criteria are not met for the next-higher rating, 20 percent, under Diagnostic Code 5260 or 5261, at any time during the rating period on appeal. In so finding, the Board has considered additional limitation of function due to factors such as pain, weakness, incoordination and fatigability. 38 C.F.R. §§ 4.40, 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The February 2009 VA examiner indicated that the Veteran was asked to flex and extend his knee 10 times; and, that, while some discomfort was noted, the Veteran's left knee range of motion testing remained unchanged. In the same manner, while the July 2011 VA examiner noted that the Veteran had weakness with associated atrophy in the medical muscles of the left knee, three repetitions of left knee range of motion testing revealed left knee flexion to identical results (130 degrees of flexion). As for the Veteran's reports of left knee flare-ups, the July 2011 VA examiner specifically noted that the Veteran endorsed being additionally limited by pain. The examiner noted, however, that the left knee flare-ups would not show weakened movement, excess fatigability, or incoordination. He further observed that the Veteran demonstrated an active and passive range of motion of 0-130 but that his range of motion was from 0 to 140 degrees when the McMurray test was performed. Such conveyed to the examiner the likelihood that the Veteran was exaggerating his complaints. In sum, these findings do not indicate a disability picture comparable to having left knee flexion limited to 30 degrees or left knee extension limited to 15 degrees as is necessary in order to achieve a 20 percent evaluation under Diagnostic Code 5260 or 5261. The Board observes that although pain may cause functional loss, and records such as a February 2009 VA treatment record notes that the Veteran has received left knee injections to control his pain, pain in and of itself does not constitute functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board acknowledges VAOPGCPREC 9-2004 (September 17, 2004), where it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, in the present case, the medical findings previously discussed do not establish loss of either left knee flexion or left knee extension to a compensable degree, and separate evaluations pursuant to VAOPGCPREC 9-2004 are not appropriate. As for the assignment of a higher or separate rating under Diagnostic Code 5258, the Board acknowledges the Veteran's complaints of "locking" and pain along with documented notation of effusion. However, dislocation of the semilunar cartilage has not been shown. Recent MRI and X-ray studies only show thinning of the cartilage. Moreover, for reasons explained above, the Veteran's complaints of pain have already been taken in to consideration in assigning him a separate rating under Diagnostic Code 5003-5010. Put another way, not only does the Veteran does not meet the criteria assigning a separate rating under 5258, but such would amount to pyramiding, which is prohibited under 38 C.F.R. § 4.14. A higher rating under Diagnostic Code 5262 is also not warranted. Malunion of the tibia and fibula is not shown. In adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his left knee disability. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his left knee disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's left knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's left knee disability is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. In conclusion, the preponderance of the evidence is against an evaluation in excess of 20 percent for the service-connected left medial collateral ligament and Segond fracture with chondromalacia patella. However, the evidence supports a separate 10 percent evaluation for arthritis of the left knee. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. At 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's left knee disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Codes that have specifically contemplated the level of occupational and social impairment caused by service-connected left knee disability. The Veteran's symptoms such as pain, instability, and limitation of motion are specifically enumerated under the applicable Diagnostic Codes. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A rating in excess of 20 percent for left medial collateral ligament and Segond fracture with chondromalacia patella is denied. A separate 10 percent rating for left knee arthritis is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs