Citation Nr: 1316754 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-38 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating for right knee ligament laxity, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for left knee ligament laxity, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to May 1977. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In September 2010, the Board remanded the claims for additional development. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. FINDINGS OF FACT 1. Moderate recurrent subluxation or lateral instability of the right knee has not been demonstrated. 2. Moderate recurrent subluxation or lateral instability of the left knee has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for right knee ligament laxity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for an evaluation in excess of 10 percent for left knee ligament laxity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As a preliminary matter, the Board finds that the requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with respect to the issues adjudicated in this decision. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the appellant in February 2006 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain. In March 2006, VA notified the appellant how disability ratings and effective dates are determined. In addition to these notification letters, at a conference held in connection with the July 2010 Board hearing, and during the hearing itself, the undersigned Veterans Law Judge fulfilled VA's duties under 38 C.F.R. § 3.103 (2012). Neither the appellant nor his representative has argued otherwise. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. In September 2010, the Board remanded the appeal, in part, to obtain private treatment records from Kaiser Permanente and attendance records from the Veteran's former employer. In October 2010, the Appeals Management Center sent a letter to the Veteran and requested that he fill out authorizations (VA Forms 21-4142) to allow VA to assist him in obtaining these records or that he obtain and submit the information himself. The Veteran responded by providing copies of VA treatment records, but failed to provide the requested authorizations or any records from Kaiser Permanente or his former employer. The Veteran has a duty to cooperate in VA's reasonable efforts to obtain records. As such, VA owes no further duties to assist him in obtaining these records. The Board also remanded the claims to obtain another VA examination, noting that the January 2009 VA examiner had not reviewed the claims file. Another VA examination was conducted in November 2010. The Board finds that the VA examination was adequate because it was based on consideration of the Veteran's prior medical history, a review of the claims file, and also described his right and left knee disabilities in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The November 2010 VA examiner also answered the questions posed in the Board's remand instructions, and the RO/AMC obtained the outstanding VA treatment records as directed by the Board. Consequently, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons set forth above, VA has complied with the VCAA's notification and assistance requirements. The Veteran's claims for higher ratings for his right and left knee disabilities are thus ready to be considered on the merits. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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 pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. 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. 38 C.F.R. § 4.45. When evaluating disabilities of the joints, VA's Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's right and left knee ligament laxity has been evaluated under Diagnostic Code 5257. Under Diagnostic Code 5257, where there is slight recurrent subluxation or lateral instability, a 10 percent rating may be assigned. A 20 percent evaluation will be assigned for moderate recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Codes 5260 and 5261, which pertain to limitation of motion of the knee are also potentially applicable. Diagnostic Code 5260 pertains to limitation of flexion of the knee. A 10 percent rating is applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). Diagnostic Code 5261 pertains to limitation of extension of the knee. A 10 percent evaluation is assigned for extension that is limited to 10 degrees. A 20 percent evaluation is assigned for extension that is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2012). Normal range of motion of a knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2012). VA's General Counsel held that a Veteran who is service connected for both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9- 98, 63 Fed. Reg. 56,704 (1998). Further, separate ratings may be assigned for compensable limitations of flexion and extension of the same knee. That is, where a Veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same knee, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). Under 38 U.S.C.A. § 5107(b) VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). Analysis In this case, the Veteran contends that his right and left knee ligament laxity is more severe than represented by the 10 percent ratings currently assigned. In his notice of disagreement, he argued that he is also entitled to separate compensable ratings for arthritis. For the reasons explained below, the Board does not find any basis for ratings in excess of 10 percent for right and left ligament laxity, nor for the assignment of separate compensable ratings for arthritis. An October 2005 private treatment record from Kaiser Permanente reflects that the Veteran complained of a history of right knee pain around the patella. He complained of clicking, popping, and buckling, but not locking. On objective examination, there was slight soft tissue swelling of the anterior knee, tenderness to palpation of the lateral joint line and patellar borders, and patellofemoral crepitus. There was a full range of motion and ligaments were intact. An X-ray of right knee reportedly revealed right knee lateral deviation of the patella and mild degenerative joint disease. The actual X-ray report from radiology revealed that three views of each knee showed mild to moderate medial lateral patellofemoral joint space with subtle lateral subluxation of the patella. In December 2005, the Veteran filed claims of entitlement to increased ratings for his right and left knee disabilities. The report of a March 2006 VA examination reflects the Veteran's complaints of knee pain, mostly anterior and diffusely around the kneecap. He reported that his knees gave way daily and locked twice per day. He also said that he had daily flare-ups, lasting an hour with pain estimated to be 8/10. He reported that he could not ride a bike, run, or play basketball. He said he did some weightlifting with his upper body but avoided lifting with his lower body. He reported that he could walk, at most, one block at work and home and wore a brace on his right knee. He said he worked as a forklift operator and had not lost any time from work. On physical examination, the Veteran ambulated with a mildly antalgic gait and wore a black neoprene brace around his right knee. He could squat to a quarter squat, but this elicited pain. He could not walk on his toes or heels. Range of motion of the right and left knees was from 0 degrees of extension to 120 degrees of flexion with pain. There was pain at 120 degrees of flexion in both knees. There was also pain with manipulation of both knees. There was no obvious laxity in either knee and no changes in range of motion with repeat testing on four occasions. The examiner noted, however, that the knees were very tender and that it was difficult to assess the extent of any laxity. During flare-ups, the examiner estimated that the Veteran would lose an additional 15 degrees of knee motion. The clinical examiner's diagnosis was bilateral knee strains without clinical instability. X-rays of the knees revealed that the osseous structures were intact and aligned. There was no lytic or blastic pathology or evidence of trauma or significant degenerative changes. The patellas and patellofemoral joints appeared normal. There were no joint effusions or free joint bodies seen. The radiologist's impression was no significant pathology. In an April 2006 letter, Dr. L.D., a private physician from Kaiser Permanente, indicated that the Veteran had frequent episodes of moderate to severe pain throughout the day due to moderate bilateral medial lateral patella femoral joint space with lateral subluxation of the patella. It was noted that he wore braces bilaterally, which aided to support instability and weakness in both knees. In an August 2006 letter, the physician stated that the Veteran was being followed for knee osteoarthritis. An October 2006 VA outpatient treatment record indicates that the Veteran's computerized problem list included "osteoarthrosis involving the knee". A December 2006 note, however, indicates that the Veteran's knee pain was of an unclear etiology and that the X-ray reports did not show osteoarthritis. At that time, the Veteran's knees were normal in appearance with no swelling or erythema. He had full range of motion bilaterally. There was moderate tenderness medial to the patellar/tibia ligament but no ligamentous tenderness. There were a few crepitations over the right knee with passive motion. In January 2007, a VA examination was only notable for medial tenderness and crepitus. There was no redness, warmth, or swelling. He had full passive range of motion of the knees. There was no crepitus or ligamentous instability. There was no significant pathology noted. A January 2009 VA examination reflects the Veteran's complaints of knee pain with daily flare-ups and pain estimated as 8/10. He reported that his knees occasionally gave way, but did not lock. He also reported that walking up stairs caused pain and that he had an occasional limp. He also was limited in playing with his grandson and had difficulty kneeling or squatting at work. At the time of the examination, he reported that he worked as a gardener. He said he took Motrin every other day for discomfort but was not receiving any ongoing treatment. On physical examination, the Veteran walked with a normal gait and did not use any assistive devices. He could squat to a third squat with pain. There was mild atrophy of the right leg. Range of right knee motion was from 0 degrees of extension to 120 degrees of flexion with pain. Range of left knee motion was from 0 degrees of extension to 125 degrees of flexion with pain. He was able to do repetitive testing three times with complaints of pain. There was no obvious laxity or instability in either knee. Pain had a major functional impact; however, there was no change in the range of motion of either knee with repeat testing. X-rays revealed no changes from the previous study. There was no evidence of degenerative joint disease or other specific soft tissue or osseous abnormalities. The impression was negative study. The examiner's assessment was bilateral knee strains without clinical instability. A March 2010 VA outpatient treatment record reflects the Veteran's complaints of a two-day history of right knee pain. He denied any recent falls. He said he was driving a big rig and twisted his knee stepping down. There was no edema, redness, or inflammation. Drawer tests were negative; there was no pain on palpation; he had fair range of motion; his gait was normal. The impression was probable strain. In July 2010, a VA physician reported that the appellant was being seen for his knee disorders. The physician noted that the appellant had been diagnosed with a bilateral patellofemoral syndrome, and that his symptoms included pain, intermittent effusion, buckling, crepitus, instability, and reduced flexion. A July 2010 VA orthopedic surgery consultation record reflects that the Veteran was referred after complaints of knee pain. It was noted that X-rays revealed no significant findings. On objective examination, the Veteran's gait was symmetric, and he demonstrated a full range of motion. There was no effusion, but there was mild medial joint line tenderness and more tenderness with patellar compression. There was mild crepitus and a limited ability to mobilize the patella medially. The impression was anterior knee pain and tight patellar retinaculum. He was referred for physical therapy. A September 2010 VA physical therapy record notes that the Veteran's knees were normal in appearance with no swelling or erythema. He had a full range of motion bilaterally. There was moderate tenderness medial to the patellar/tibia ligament but no ligamentous tenderness. Anterior and posterior drawer tests were negative. Varus and valgus stress tests were also negative. The report of a November 2010 VA examination reflects the Veteran's complaints of knee pain, primarily along the medial joint line of each knee; infrapatellar tenderness, and pain underneath the knee cap. He also complained of weakness, swelling, and moderate stiffness. He reported that his knees gave way every hour and locked every hour depending on activities. He reported that flare-ups occurred daily and pain was between 7 and 9/10 in intensity. The appellant said that he was currently working in security full time and that he his knees limited his ability to stand more than 15 minutes or walk more than 30 minutes. He said his knees also limited his ability to do sports. He reported that he wore bilateral knee support braces. On physical examination, the Veteran had pain and some stiffness. There was no evidence of weakness, swelling, instability, or fatigability. Range of motion of the right knee was from 0 degrees of extension to 100 degrees of flexion. Range of motion of the left knee was from 0 degrees of extension to 120 degrees of flexion. He was able to do three repetitions with pain, but there was no decrease in range of motion and no additional functional limitation. Pain began at the extreme ranges of motion. There was tenderness in both the medial joint lines and infrapatellar tendons of both knees. There was also mild subpatellar crepitus with movement of both knees. There was no obvious laxity and medial and lateral collateral ligament testing was negative. Anterior and posterior drawer tests were also negative for laxity. There was marked tenderness while attempting to test the collateral ligaments. It was noted that there was no clinical evidence of instability despite the Veteran's subjective complaints. X-rays were negative. The assessment was bilateral knee strains without instability, retropatellar pain syndrome and chondromalacia patella. Regarding the question of arthritis, the examiner indicated that clarification as to the meaning of "arthritis" might be useful to answer this question. The examiner opined that the Veteran did not have radiographic evidence of arthritis in his knees, but did have chondromalacia patella, which was a form of softening and degeneration of the cartilage beneath the patella. In this case, the evidence preponderates against finding any basis for ratings in excess of 10 percent for right and left knee ligament laxity. To warrant a higher 20 percent rating under Diagnostic Code 5257, the evidence must show moderate recurrent subluxation or lateral instability. Here, the evidence overwhelmingly indicates that the Veteran has no clinical signs of subluxation or lateral instability. At March 2006, January 2009, and November 2009 VA examinations, there was no obvious laxity or instability in either knee. Ligaments were intact. Anterior and posterior drawer tests and varus and valgus stress tests were negative. An October 2005 private X-ray from Kaiser indicated that there was only "subtle" lateral subluxation of the patella. Overall, the evidence preponderates against higher 20 percent ratings for right and left knee ligament laxity. The Board has also considered whether higher ratings might be warranted under Diagnostic Code 5260 for limitation of flexion. To warrant a higher 20 percent rating under Diagnostic Code 5260, the evidence must show limitation of flexion to 30 degrees or less. At worst, right knee flexion was limited to 100 degrees and left knee flexion was limited to 120 with pain at the endpoints (November 2010 VA examination). The March 2006 VA examiner estimated that the Veteran would lose an additional 15 degrees during flare-ups which would approximately limit flexion of the right knee to 85 degrees and limited flexion of the left knee to 105 degrees. As such, ratings higher than 10 percent under Diagnostic Code 5260 are not warranted even when considering additional functional impairment during flare-ups. As regards the DeLuca factors, the Board acknowledges the evidence of pain on motion and the Veteran's functional limitations and has considered these factors in the assignments discussed above. Increased ratings, however, are not warranted based on these factors. In this regard, the VA examiners indicated that there was no additional limitation of motion with repetitive testing. Based on this evidence, the Board finds insufficient medical evidence to support that the Veteran's pain is so disabling as to actually or effectively limit flexion of either knee to such an extent as to warrant assignment of a higher rating under 38 C.F.R. § 4.71a , Diagnostic Code 5260. In his October 2006 notice of disagreement, the Veteran argued that he is entitled to separate compensable ratings for right and left knee arthritis. This issue was addressed separately in a December 2008 rating decision, which denied entitlement to service connection for bilateral knee osteoarthritis. The Veteran was notified of the decision and did not appeal. Moreover, the X-ray evidence overwhelmingly indicates that the Veteran does not have degenerative joint disease (i.e., osteoarthritis). Although Dr. L.D. from Kaiser indicated that the Veteran was being followed for knee osteoarthritis, X-rays taken in May 1999, March 2003, March 2006, and January 2009 did not show any degenerative changes consistent with arthritis. The November 2010 VA examiner opined that the Veteran had chondromalacia, which involves the degeneration of the cartilage beneath the patella, but that there was no radiographic evidence of arthritis. Because the weight of the evidence preponderates against finding that the Veteran has arthritis in either knee, there is no basis to assign separate compensable ratings in this case. With respect to other potentially applicable diagnostic codes, there is no evidence of any ankylosis, cartilage dislocation or removal, limitation of extension, or tibia and fibula impairment. Hence, consideration of Diagnostic Codes 5256, 5258, 5259, 5261, and 5262 are not appropriate. 38 C.F.R. § 4.71a. In reaching these decisions, the Board considered the Veteran's lay statements. The Veteran is competent to report his observations with regard to the severity of his right and left knee ligament laxity, including reports of pain, limited mobility, and giving way. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds his statements to be credible and consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the right and left knee symptoms described by the Veteran are contemplated by the applicable rating criteria. Subluxation and lateral instability encompasses functional limitation due to pain and giving way. Furthermore, higher ratings are available for more severe symptomatology and other criteria have been considered for limitation of flexion. Although the Veteran testified during the Board hearing that he lost one to two months from work due to his knees, he did not respond to VA's attempts to obtain his attendance records from his employer and has not otherwise provided evidence of marked interference with employment or frequent hospitalization. The Board finds that the degree of impairment in this case does not rise to the level that application of the regular schedular standards are impractical. Therefore, referral for consideration of an extraschedular rating for right and left knee laxity is not warranted. 38 C.F.R. § 3.321(b)(1) . The Board acknowledges that in the recent case of Johnson v. Shinseki, the Court found that VA's disability-by-disability interpretation of 38 C.F.R. § 3.321(b)(1) was consistent with its statutory and regulatory scheme. __Vet. App. __, No. 10-1785, 2013 WL 1224810, *6 (Vet. App. March 27, 2013). However, even if the Board considers the Veteran's combined symptomatology resulting from his service-connected right and left knee disabilities, there is no evidence of marked interference with employment or frequent hospitalization. Hence, referral for consideration of an extraschedular rating would not be warranted even on a combined basis. The Board has also considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In Rice, the Court held that a claim for total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. Here, however, the Veteran has not claimed nor does the evidence indicate that he is unemployable due to his service-connected right and left knee disabilities. During the July 2010 Board hearing, the Veteran testified as to the impact that his knees had on his employment, but he did not assert that he was unemployable. He reported that he had been recently laid off from a job with the city, but during the November 2010 VA examination, he indicated that he was working full-time in security. Accordingly, a claim of entitlement to a total disability evaluation based on individual unemployability due to right and left knee disabilities is not deemed to be a component of the current appeal. For the reasons and bases discussed above, the preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for right and left knee laxity. Therefore, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an evaluation in excess of 10 percent for right knee laxity is denied. Entitlement to an evaluation in excess of 10 percent for left knee laxity is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs