Citation Nr: 1315685 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-22 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for right knee status post arthroscopic surgery, meniscal tear with partial anterior cruciate ligament (ACL) injury. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1999 to April 2004. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). This case is currently under the jurisdiction of the RO in Columbia, South Carolina. In May 2012, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in July 2012 so that attempts could be made to obtain records of private treatment and a VA examination could be scheduled. These were undertaken and the case has been returned to the Board. FINDING OF FACT Throughout the appeal, the Veteran's right knee disability has been manifested by pain; crepitus; range of motion of, at worst, 0 degrees extension to 115 degrees flexion; and additional symptoms of mild instability of the right knee joint. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee status post arthroscopic surgery, meniscal tear with partial ACL injury, based on other impairment with instability have not been met for any period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5257 (2012). 2. The criteria for a separate initial rating of 10 percent for noncompensable limitation of motion of the right knee due to arthritis, with x-ray evidence of arthritis, has been met for the entire rating period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Codes 5003, 5260 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess 19 Vet. App. at 473, aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A February 2009 statement of the case (SOC) provided notice on the "downstream" element of initial rating; while a January 2013 supplemental SOC (SSOC) readjudicated the matter after the Veteran responded and further development was completed. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations, most recently in August and October 2012. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). Rating Laws and Regulations 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. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2010). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010). In this case, the Board has considered the entire period of initial rating claim from April 6, 2004, to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Right Knee Disability Service connection for status post arthroscopic surgery, meniscus tear with partial ACL injury, of the right knee was granted by the RO in a February 2007 rating decision. The 10 percent initial disability rating was awarded under the provisions of Code 5257 from the date of claim in April 2004. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 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. 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. Note (1) provides that the 20 pct and 10 pct 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, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. An examination was conducted by VA in March 2005. At that time, the Veteran described an aching pain in the right knee with locking and swelling of the knee. He was unable to run, but could ambulate independently and go up and down steps. A report of a 2004 MRI examination showed a tear of the posterior horn of the medial meniscus with loculated fluid collection in the popliteal fossa as a result of a perimeniscal cyst or ganglion. There was also some evidence to suggest a possible ACL injury. He had no significant history of flare-ups. On examination, there was crepitus on range of motion. Range of motion was measured to be from 0 degrees extension to 125 degrees flexion. Range of motion was limited by pain. There was mild instability of the right knee. There was a negative drawer sign and a negative McMurray sign. Gait was stable. With repetitive use, there was no additional loss of range of motion due to pain, fatigue, weakness, or incoordination. The diagnostic impression was meniscal tear as well as partial ACL injury with range of motion as described. An examination was conducted by VA in May 2006. At that time, the Veteran complained of weakness in the right knee and stated that it gave way. He stated that he had pain that was mostly medial and occurred five to six times per week. He described the pain as crushing and sharp. He took Codeine mediation up to four per day for pain. He could function with medication, but could not jog, run, or jump. Examination of the right knee showed two 1 cm arthroscopy scars on the lateral and inferior portion that were hyperpigmented with abnormal texture. Examination of the right knee was found to be normal, with no crepitus, locking, joint effusion, or ankylosis. Range of motion was from 0 degrees extension to 140 degrees flexion. There was no functional impact with repetition of movement. Examination of ligaments was slightly positive on the right. Private records show that the Veteran was treated for bilateral knee pain during 2009. When last evaluated, in December 2009, the Veteran had full range of motion of the knee, with diminished strength that was believed to be gradually improving. The portals were well-healed, with minimal effusion noted in the knee. The Veteran was instructed for a home exercise program. An examination was conducted by VA in August 2012. At that time, the diagnoses were bilateral knee osteoarthritis and medial meniscus tear. The Veteran reported flare-ups where the pain became worse to the point where he had to lie down. He stated that the pain became worse at night, at the end of the day. Range of motion of the right knee was from 0 degrees extension to 110 degrees flexion. There was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions, without further limitation of motion. There was tenderness and pain to palpation of the joint line. Muscle strength was normal 5/5. There was no instability of the ligaments of the right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. There was evidence of meniscus surgery, with frequent episodes of joint "locking" and joint pain. The Veteran occasionally used a knee brace. Regarding functional impact on the Veteran's ability to work, it was noted that he no longer worked remodeling homes because of knee pain. He was seeking employment as a counsellor after having obtained a masters degree, but had not as yet been able to find a job. Another VA examination was conducted in October 2012. At that time, the diagnoses were meniscus tear and osteoarthritis. It was noted that the Veteran had experienced locking of the knee during service. He reported flare-ups where he had difficulty standing due to instability of the knee. Range of motion of the right knee was from 0 degrees extension to 120 degrees flexion. The motion was not changed after repetitive motions of the knee joint. There was no tenderness to palpation of the joint. Muscle strength testing showed strength to be 5/5. No ligament instability was noted and there was no evidence of recurrent patellar subluxation or dislocation. The Veteran did report episodes of locking and joint pain and had had a meniscectomy. He occasionally used a knee brace. There was X-ray evidence of degenerative or traumatic arthritis. His knee disability impacted his ability to work in that he was not able to stand for prolonged periods in his job as a yogurt shop manager. As noted, the Veteran's right knee disability has been rated as 10 percent disabling under the provisions of Code 5257, for other impairment of the knee. It is noted that, throughout the appeal, the Board finds that other impairment is demonstrated. On examination in 2004, mild instability of the right knee was demonstrated. Instability was also demonstrated in examination in 2006. While the August 2012 and October 2012 examinations did not find instability or subluxation, each examiner noted the Veteran's meniscal tear with frequent episodes of joint locking The Board finds that, in addition to this disability, a separate 10 percent rating is warranted for limitation of motion of the right knee due to arthritis. The record shows that the Veteran has been diagnosed with arthritis on X-ray examination. With the exception of the examination by VA in 2006, and the report of private treatment in 2006, the Veteran has exhibited some limitation of flexion that would be noncompensable under the criteria for evaluation of limited flexion (Code 5260). Such limitation, resulting as it is from arthritis established by x-ray findings, warrants a separate 10 percent award under Diagnostic Codes 5003, 5260. As this was demonstrated in 2004, the Board finds that, resolving all reasonable doubt in the Veteran's favor, the 10 percent should be awarded from the date of service connection in April 2004. The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's right knee limitation of flexion is rated as part of the arthritis and directly corresponds to the schedular criteria for the 10 percent evaluation for noncompensable limitation of knee motion (Codes 5003 and 5260), which also incorporates various orthopedic factors that limit motion or function of the knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca. The slight right knee impairment caused by instability (Code 5257) that was noted in some of the examination reports is specifically contemplated in the schedular rating criteria, and is the basis for a separate schedular rating that recognized functional impairment distinct from the service-connected arthritis with limitation of motion. Higher evaluations are provided for greater limitation of motion and subluxation/instability For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's right knee disabilities, and no referral for an extraschedular rating is required. Finally, it is indicated in the record that the Veteran is employed. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 10 percent for right knee status post arthroscopic surgery, meniscal tear with partial ACL injury, based on instability, is denied. A separate, initial 10 percent rating for right knee arthritis, established by x-ray findings, due to noncompensable limitation of flexion, is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs