Citation Nr: 1316007 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 08-26 458A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee. 2. Entitlement to a rating in excess of 10 percent for residuals of an anterior cruciate ligament (ACL) tear of the left knee with osteoarthritis. 3. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1974 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, continued the current 10 percent evaluations for the service-connected knee disabilities and denied entitlement to TDIU. In a statement received in October 2007, the Veteran filed a claim for entitlement to service connection for lymphedema of the bilateral lower extremities, to include as secondary to service-connected knee disabilities. This issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's degenerative joint disease of the right knee manifests limitation of flexion to 90 degrees with limitation of extension to 10 degrees and frequent episodes of locking, dislocation, and joint pain. 2. The Veteran's residuals of an ACL tear of the left knee with osteoarthritis manifest limitation of flexion to 90 degrees with limitation of extension to 10 degrees and frequent episodes of locking, dislocation, and joint pain. CONCLUSIONS OF LAW 1. The schedular criteria for a rating of 20 percent, but not higher, for degenerative joint disease of the right knee based on locking and dislocation of semilunar cartilage have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262 (2012). 2. The schedular criteria for a separate rating of 10 percent, but not higher, for degenerative joint disease of the right knee based on limitation of extension have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5261. 3. The schedular criteria for a rating of 20 percent, but not higher, for residuals of an ACL tear of the left knee with osteoarthritis based on locking and dislocation of semilunar cartilage have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5262. 4. The schedular criteria for a separate rating of 10 percent, but not higher, for residuals of an ACL tear of the left knee with osteoarthritis based on limitation of extension have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for residuals of a cruciate ligament tear of the left knee was granted in a March 1980 rating decision with an initial 10 percent evaluation assigned effective August 11, 1979. Service connection for degenerative joint disease of the right knee was granted in a July 2006 rating decision with an initial 10 percent evaluation assigned effective February 17, 2006. The November 2007 rating decision on appeal continued the 10 percent evaluations for both knee disabilities. The Veteran contends that increased ratings are warranted for his service-connected knee conditions as he experiences severe pain, limitation of motion, and functional impairment. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation 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 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected knee disabilities are separately rated as 10 percent disabling under Diagnostic 5003 pertaining to degenerative arthritis. This diagnostic code provides for a 10 percent evaluation when limitation of motion is noncompensable for a major joint or group of minor joints. 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, Diagnostic Code 5003. While Diagnostic Code 5003 provides a maximum 20 percent evaluation with X-ray evidence of involvement of 2 or more major or minor joints and occasional incapacitating episodes, the Veteran's service-connected disabilities clearly affect only one major joint: each respective knee. Thus, an increased rating is not warranted under Diagnostic Code 5003 at anytime during the claims period. Although an increased rating is not warranted under Diagnostic Code 5003, the Board finds that the Veteran's knee disabilities most nearly approximate the criteria contemplated by Diagnostic Code 5258 and an increased 20 percent rating is warranted. Under Diagnostic Code 5258, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion. 38 C.F.R. § 4.71a, Diagnostic Code 5258. In February 2013, a VA examiner specifically found that the Veteran's knees both demonstrated frequent episodes of locking, joint pain, and joint effusion. The Veteran has also complained of knee dislocation and locking during orthopedic consultations at the Columbia VA Medical Center (VAMC) and during an earlier VA examination performed in October 2007. The Veteran's right and left knee disability are therefore properly rated as 20 percent disabling under Diagnostic Code 5258. The record also contains evidence indicating that the Veteran experiences instability of the bilateral knees; however, there is no basis for a separate rating for instability under Diagnostic Code 5257. The Veteran's VA physicians and VA examiners identified several findings indicative of right and left knee instability, but these symptoms are already considered by Diagnostic Code 5258. The evaluation of the same disability or the same manifestations under various diagnoses is prohibited. 38 C.F.R. § 4.14. Diagnostic Code 5258 contemplates dislocation of the cartilage of the knee which, in this case, has resulted in giving way of the Veteran's knee joints. Similarly, Diagnostic Code 5257 relates to instability and subluxation of the joint, i.e., incomplete or partial dislocation. See Dorland's Illustrated Medical Dictionary, 31st Ed. (2007), p.1817. Hence, rating the Veteran's disabilities under both diagnostic codes would violate the rule against pyramiding detailed in 38 C.F.R. § 4.14 as the symptomatology contemplated by both is not separate and distinct. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also finds that increased evaluations of 30 percent are not warranted under Diagnostic Code 5257 for instability of the knees. A VA orthopedist found that the Veteran's right knee was positive to anterior drawer testing during an October 2006 consultation at the Columbia VAMC, but the Veteran had no obvious instability or laxity during a follow-up examination in January 2007. The October 2007 and February 2013 VA examiners also noted some findings of instability upon McMurray, Lachman, and drawer tests, but other tests performed during each examination indicated stable knees. It is therefore clear that while the Veteran's knee disabilities have demonstrated some instability, it does not most nearly approximate severe and a maximum 30 percent evaluation under Diagnostic Code 5257 is not warranted. The Board must now consider whether separate ratings are warranted for limitation of motion of the knees. The Board notes that Diagnostic Code 5258 does not on its face contemplate limitation of motion. In addition, while VA's General Counsel has held that Diagnostic Code 5259 (pertaining to removal of the semilunar cartilage) may contemplate limitation of motion, it has never addressed whether Diagnostic Code 5258 for dislocation of the cartilage similarly encompasses limited motion of the knee. In any event, the Board finds that in this case, the Veteran's service-connected knee disabilities have been productive of limited motion that is not contemplated by Diagnostic Code 5258. Therefore the award of a separate evaluation based upon limitation of motion would not be deemed pyramiding. See 38 C.F.R. § 4.14. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Throughout the claims period, the Veteran has manifested bilateral noncompensable limitation of flexion to 90 degrees or better. With respect to extension, the Veteran's knees demonstrated extension limited to 10 degrees which is contemplated by a 10 percent evaluation under Diagnostic Code 5261. Bilateral knee extension was most limited at the October 2007 VA examination when the Veteran reported pain beginning at 10 degrees of extension. There was no additional loss of range of motion during repetitive testing. Bilateral flexion was most restricted at the February 2013 VA examination when it measured 90 degrees. The Veteran experienced pain at the endpoint of flexion testing and repetitive testing indicated improved range of motion of both knees. Clinical records from the Columbia VAMC document treatment for bilateral knee pain, but the Veteran demonstrated range of motion of both knees from 0 degrees of extension to 100 degrees of flexion upon orthopedic consultations in October 2006 and January 2007. Therefore, extension was most limited at the October 2007 VA examination with flexion most limited at the February 2013 VA examination. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. With consideration of the DeLuca factors, it is clear that the Veteran's bilateral knees have manifested flexion that is limited, at most, to 90 degrees and extension limited to 10 degrees. The range of motion results reported by the October 2007 and February 2013 VA examiners included the Veteran's complaints of pain and the Board has considered the points where the Veteran reported pain when determining the correct range of motion of the bilateral knee disabilities. The Board also notes that repetitive testing performed during both VA examinations did not result in any additional loss of motion; in fact, the Veteran demonstrated improved flexion in both knees with repetitive testing in February 2013. The Board therefore finds that the Veteran's knees manifest motion that most nearly approximates 90 degrees of bilateral flexion with consideration of all relevant factors. Flexion limited to 90 degrees is noncompensable under Diagnostic Code 5260. 38 C.F.R. § 4.71a, Diagnostic Code 5260. However, extension of both knees is limited to 10 degrees with consideration of functional factors. This finding is associated with a 10 percent evaluation under Diagnostic Code 5261. Therefore, with respect to limitation of motion, the Board finds that the Veteran's bilateral knees warrant separate 10 percent evaluations for limitation of extension under Diagnostic Code 5261. This rating replaces the Veteran's previous 10 percent evaluation for noncompensable range of motion under Diagnostic Code 5003. Although the Veteran has demonstrated limitation of both flexion and extension, the Board finds that separate ratings are not warranted for the noncompensable limitation of flexion under Diagnostic Code 5003 and compensable limitation of extension under Diagnostic Code 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension, but specified that these separate ratings were only appropriate under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (2004). The Veteran's limitation of flexion is noncompensable under Diagnostic Code 5260 and the previous 10 percent evaluation for limitation of motion was assigned under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 provides that a 10 percent rating is combined, not added, for each major joint affected by noncompensable limitation of motion under the appropriate diagnostic codes. In this case, although the Veteran manifests limitation of flexion that is noncompensable under Diagnostic Code 5260, he also manifests limitation of extension that is compensable under Diagnostic Code 5261. Thus, the limitation of motion is compensable and a 10 percent evaluation for Diagnostic Code 5261 is appropriate for each knee, separate from the 20 percent evaluation assigned for dislocation of the semilunar cartilage under Diagnostic Code 5258. In sum, the Veteran's right and left knee disabilities each warrant a 20 percent rating under Diagnostic Code 5258 for dislocation of the semilunar cartilage and a separate 10 percent rating under Diagnostic Code 5261 for compensable limitation of extension. Separate or increased ratings are not appropriate under Diagnostic Codes 5257 for recurrent subluxation or lateral instability or Diagnostic Code 5003 for degenerative arthritis. The Board has considered whether there is any other schedular basis for granting a higher or separate rating, but has found none. The Veteran has not demonstrated knee ankylosis or impairment of the tibia and fibula and Diagnostic Codes 5256 and 5262 are not for application. There is also no evidence that the Veteran has undergone surgery to remove the semilunar cartilage of either knee. A 10 percent rating under Diagnostic Code 5259 is also not appropriate. The Board has considered the implications of the change in the diagnostic code assigned to the Veteran's right and left knee disabilities and recognizes that any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's knee conditions were previously rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2012) for degenerative arthritis manifested by noncompensable limitation of motion. However, the manifestations of the Veteran's disabilities do not most nearly approximate the criteria associated with a compensable evaluation under that diagnostic code as the right and left knees demonstrate episodes of locking, dislocation, and limitation of extension. Therefore, the Board has determined that Diagnostic Codes 5258 and 5261 more appropriately contemplate the symptoms from the Veteran's service-connected disabilities. Furthermore, the Veteran's knee arthritis was rated under Diagnostic Code 5003 since 2006, and has not been in effect for more than 20 years. Thus, the provisions of 38 C.F.R. § 3.951 regarding preservation of disability ratings do not apply. The Board must now determine whether the modification of the diagnostic code may be considered a severance. This matter was addressed by the Federal Circuit Court in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). Essentially, it has consistently been found that the protection afforded is to the disability and not the diagnostic code used to rate the disability. See VAOPGCPREC 13-92 (modifications of the Diagnostic Code did not change the protected status of the disability). Recognizing instances where the Board has rated a Veteran's disability under a different diagnostic code than previously rated, the Court has similarly indicated that there may be times when a change in diagnostic code is not equivalent to a severance. See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (a simple, nonsubstantive administrative correction showing the injury causing disability was to a different part of the body than that reflected in the initial rating "did not result in a new rating or the severance of the old rating"). In the Read case, the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from suddenly having that determination stripped. It found that to determine that the change of the situs of the disability (or the diagnostic code associated with it) was a severance of one service connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same, would "ill-serve the purpose of the statute." The Federal Circuit also found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford v. Brown, 6 Vet. App. 269 (1994). See Read, supra. In this case, the assignment of ratings under Diagnostic Codes 5258 and 5261 does not constitute a severance. Instead, the Board has determined that diagnostic codes different from those assigned by the RO in a July 2006 rating decision are more accurate descriptors of the service-connected disability, i.e. knee conditions that manifest locking, dislocation, and limitation of motion, and allow for higher disability ratings than the previous diagnostic code. As noted above, the use of Diagnostic Codes 5258 and 5261 have not resulted in any reduced benefit to the Veteran. Therefore, the assignment of different diagnostic codes does not result in an improper severance of service connection for any manifestation of the Veteran's knee disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's knee disabilities. The Veteran's right and left knee disorders are manifested by symptoms such as locking, dislocation, and limitation of motion. These manifestations are specifically contemplated in the rating criteria. In April 2013, the Veteran's representative contended that an extraschedular rating was warranted based on the Veteran's weekly knee injections and marked interference with employment. However, the Board has determined that the manifestations of the disability are adequately contemplated by the rating criteria and weekly treatment for the disabilities does not indicate an unusual disability picture. The representative also did not identify any specific evidence to constitute "marked interference" with the Veteran's employment. The rating criteria are therefore adequate to evaluate the disabilities and referral for consideration of extraschedular rating is not warranted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a July 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claims in the July 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, private medical records and records from the Social Security Administration (SSA). Additionally, the Veteran was provided VA examinations to determine the severity of his knee disabilities in October 2007 and February 2013. Although the October 2007 VA examiner noted that the claims file was not reviewed in conjunction with the examination, the complete claims file was reviewed by the most recent VA examiner in February 2013. Thus, the Veteran was provided an adequate VA examination to determine the current severity of his disabilities. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a 20 percent rating, but not higher, for degenerative joint disease of the right knee based on episodes of locking and dislocation is granted. Entitlement to a separate 10 percent rating, but not higher, for degenerative joint disease of the right knee based on limitation of extension is granted. Entitlement to a 20 percent rating, but not higher, for residuals of an ACL tear of the left knee with osteoarthritis based on episodes of locking and dislocation is granted. Entitlement to a separate 10 percent rating, but not higher, for residuals of an ACL tear of the left knee with osteoarthritis based on limitation of extension is granted. REMAND The Veteran has filed a new claim for entitlement to service connection for lymphedema of the bilateral lower extremities, to include as secondary to service-connected knee disabilities. As this claim is inextricably intertwined with the claim for TDIU, the claim for service connection must be adjudicated before further action is taken on the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. Adjudicate the issue of entitlement to service connection for lymphedema of the bilateral lower extremities. 2. After completion of the above and any additional notice or development deemed appropriate, readjudicate the claim for TDIU in light of all the evidence of record. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs