Citation Nr: 1317316 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-26 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 10 percent for tear, posterior horn of medial meniscus and anterior horn of lateral meniscus with partial tear of posterior cruciate ligament, right knee (right knee disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 1989. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from November 2006 and April 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board Remanded this claim in a decision and remand issued in March 2011. FINDINGS OF FACT 1. The totality of the evidence establishes that the Veteran's right knee disability causes no more than mild instability. 2. Even considering his complaints of pain, the Veteran's right knee disability was manifested by flexion from -3 degrees to 110 or more degrees. 3. Arthritis of the right knee has not been confirmed by radiologic examination. 4. Magnetic resonance imaging (MRI) conducted while the Veteran was in service disclosed tears of the posterior horn of the medial meniscus and of the anterior horn of the lateral meniscus, and disclosed a partial tear of the posterior cruciate ligament, right knee. 5. The Veteran has not undergone any surgical procedure to repair the medial or lateral meniscus or the posterior cruciate ligament, right knee; and, he experiences locking varying from three or more times per month to several times weekly. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for tear, posterior horn of medial meniscus and anterior horn of lateral meniscus with partial tear of posterior cruciate ligament, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.14, 4.40, 4.45, 4.71, 4.71a, Diagnostic Codes 5256, 5257, 5260 (2012). 2. The criteria for a separate 20 percent evaluation for dislocated semilunar cartilage, right knee, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.14, 4.40, 4.45, 4.71, 4.71a, Diagnostic Code 5258 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). 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 September 2006 of the criteria for establishing an increased rating, 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. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in November 2006. Nothing more was required. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been associated with the claims files. Private clinical records and medical statements have been submitted by the Veteran. The Veteran has not identified any additional evidence of any type. The Veteran underwent VA examinations in March 2007 and April 2011 to address the nature and severity of his right knee disability. To that end, 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 aforementioned examinations were thorough, and well reasoned, took into account the Veteran's personal history/complaints, and addressed the relevant rating criteria. The Board therefore finds that the examinations were adequate for rating purposes. The 2011 Remand directed that the Veteran be afforded and opportunity to identify any additional evidence and that he be afforded VA examination. Those actions have been completed. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Claim for higher rating for right knee disability Historically, during his service, the Veteran incurred a tear of the posterior horn of the medial meniscus, a partial tear of the anterior horn of the lateral meniscus, and a partial tear of the posterior cruciate ligament, right knee. By a 1989 rating decision, service connection for a right knee disability was granted effective immediate subsequent to the Veteran's service discharge in January 1989. A 10 percent evaluation was assigned under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. In May 2004, the Veteran sought an increased evaluation for right knee disability and service connection for arthritis of the right knee. Service connection for arthritis, right knee, was denied, as there was no confirmation of arthritis on radiologic examination, and the noncompensable evaluation in effect since 1992 was increased to a 10 percent evaluation, under DC 5257. That rating decision, issued in September 2004, became final in September 2005. In August 2006, the Veteran sought an increased evaluation for right knee disability. Provisions governing analysis of claims for higher ratings The law provides that disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify various disabilities. See 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Requests for increased disability ratings require consideration of the medical evidence of record compared to the criteria in the VA Schedule for Rating Disabilities. See 38 C.F.R., Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation 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. Consideration must be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). When a Veteran has traumatic arthritis, that disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5010. The criteria used for evaluation under DC 5010 are those specified in DC 5003, the criteria for evaluating degenerative arthritis. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5003 further states that, where limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under DC 5003. 38 C.F.R. § 4.71a. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97. The General Counsel subsequently clarified in VAOPGCPREC 9-98 that, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. If a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Additionally, separate ratings may be assigned, as well, for limitation of extension and flexion. VAOPGCPREC 9-2004. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension, the limitations must be rated separately to adequately compensate him for functional loss. The Board observes that the words such as "moderate" and "marked" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Under DC 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees. For a 20 percent evaluation, limitation must be to 30 degrees. A 30 percent evaluation is warranted with limitation to 15 degrees of flexion. Under DC 5261, a noncompensable rating is assigned when knee extension is limited to 5 degree; when extension is limited to 10 degrees, a 10 percent rating may be assigned. With respect to disabilities specific to the knee, 38 C.F.R. § 4.71a, DCs 5256 through 5262, set forth relevant provisions. Specifically, DC 5256 permits a 30 percent rating for favorable ankylosis in full extension, or in slight flexion between 0 degrees and 10 degrees, while a Veteran will garner a 40 percent rating with ankylosis in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, DC 5256. DC 5258 provides for a maximum 20 percent evaluation for cartilage, semilunar, dislocated with frequent episodes of "locking," pain, and effusion into the joint, while DC 5259 allows a maximum of 10 percent for cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a, DCs 5258, 5259. Facts and analysis The Veteran submitted an August 2006 treatment note from a private provider, WFB, DO. The Veteran reported pain and tenderness of the right knee. McMurray's testing and Apley's testing were positive on the medial side. There was a marked grind of the patellofemoral joint. There was an opening angle of 10 degrees with valgus stress and 5 degrees with varus stress. There was a Grade I to Grade II effusion. The provider concluded that the Veteran had gross findings compatible with a chronic meniscal tear in the right knee and secondary degenerative changes. However, it was noted that X-ray studies of the right knee had not been conducted and were not of record. In an August 2006 letter, received by VA in November 2006, Dr. B. also noted that the Veteran's right knee motion was from -3 degrees extension to 110 degrees flexion. On VA examination conducted in March 2007, the Veteran was not using an assistive device when walking. He reported that he was able to stand for up to one hour and able to walk more than 1/4 mile. The examiner stated that there was no giving way or instability of the right knee, but there was locking several times each week. There was no abnormality of weight bearing. Motion was from 0 degrees to 135 degrees without pain, with pain beginning at 135 degrees. There was also pain at 0 degrees of extension. The examiner stated that there was pain and instability on motion. There was valgus laxity of the collateral ligament in neutral position and at 30 degrees of flexion. The examiner concluded that there was right knee medial laxity on objective examination. There was no evidence of any abnormality on VA radiologic examination of the right knee. On VA examination conducted in April 2011, the Veteran manifested giving way and instability of both knees. He reported one to three locking episodes per month. He reported intermittent use of a brace (it was not indicated whether the Veteran used a right knee brace, a left knee brace, or a bilateral knee brace). Right knee flexion was from 0 degrees to 110 degrees. There was objective evidence of pain on motion. The examiner did not describe the point at which pain began or ended. There was also objective evidence of increased pain with three repetitions of motion but no additional loss of function/motion. Radiologic examination disclosed "no evidence of significant arthritis or other abnormality." Under DC 5257, a 10 percent evaluation is warranted with mild instability. In this case, Dr. B's August 2006 treatment note and the April 2011 VA examination both state that there is instability. The March 2007 VA examination stated that there was "no instability" of the right knee, but described "laxity." The VA examiner quantified the right knee instability in 2007 as valgus laxity of the collateral ligament in neutral position and at 30 degrees of flexion, resulting in medial instability. The Veteran has provided lay reports of instability. As instability is a symptom visible to a lay person, the Veteran is competent to describe instability. The evidence establishes that there is instability of the right knee. The Board must next consider whether the instability is mild, moderate, or severe. The April 2011 VA examination did not quantify the right knee instability. The 2006 and 2007 examination reports, such as the findings of 5 degrees of angle with varus stress and 10 degrees with valgus stress, are consistent with mild instability; neither provider indicated that instability was more severe than the mild objective findings describe. A finding that instability is mild is consistent with the in-service finding that the Veteran had a partial tear of a ligament. The Veteran has indicated several times during the pendency of the appeal that he does not use a brace or other assistive device; at the time of the most recent VA examination in 2011, the Veteran reported intermittent use of a knee brace, but the examination report, which discussed symptoms in both knees, did not indicate the frequency of use of a brace on the right knee. The Veteran's statements are consistent with mild instability, but not moderate instability, since more frequent instability would be more consistent with frequent or consistent use of at least some type right knee brace. The Veteran's statements, in light of the record, describe use of some type of over-the-counter knee brace. There is no record that a provider has prescribed a specific type of right knee brace or a right knee brace specially made, fitter or adjusted for the Veteran. No use of a right knee brace or infrequent or intermittent use of a brace or other assistive device is consistent with mild instability. The fact that the right knee brace in use by the Veteran is not a brace that was specifically order, fitted or adjusted for the Veteran by a provider is consistent with mild instability, but is not consistent with moderate or severe instability. The preponderance of the evidence is against an evaluation in excess of 10 percent under DC 5257. 38 U.S.C.A. § 5107(b). As a 10 percent evaluation is provided under DC 5257 for mild instability of a knee, the current 10 percent evaluation assigned under DC 5257 is appropriate. The Board must next consider whether the Veteran is entitled to a separate compensable evaluation under any other Diagnostic Code. An evaluation for arthritis, under DC 5003, requires objective confirmation of arthritis on radiologic examination. Dr. B. provided a diagnosis of degenerative joint disease of the right knee based on clinical observations, but there is no record that Dr. B. conducted radiologic examination during the pendency of this appeal. The VA radiologic examinations did not confirm degenerative joint disease of the right knee. Rather, those examinations, both in 2007 and 2011, stated that there was no significant abnormality of the right knee on radiologic examination. Only arthritis of the non-service connected left knee was visualized. An old, healed fracture of the right proximal fibular shaft was incidentally noted. However, that finding is not equivalent to degenerative joint disease. For purposes of information only, the Board notes that the fibula is the outer and smaller of the two bones of the lower leg. Dorland's Illustrated Medical Dictionary 712 (31st ed. 2007). Thus, the criteria for a separate, compensable evaluation for arthritis under DC 5003 is not warranted. The evidence establishes that the Veteran has extension to 0 degrees, so he does not meet the criteria for a compensable limitation of extension. He has flexion without pain to 110 degrees, according to Dr. B.'s report, the report that described the greatest limitation of flexion. The Veteran's limitation of flexion is not compensable. Therefore, no criterion for a compensable evaluation based on limitation of motion may be assigned under DC 5260 or 5261. With regard to establishing loss of function due to pain, there is no indication that his associated pain causes functional loss warranting a separate compensable rating under the Diagnostic Codes for limitation of motion. The extent of his actual limitation of motion does not entitle him to a compensable rating for either loss flexion (DC 5260) or extension (DC 5261), even considering pain and stiffness on motion. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206. The VA examinations clearly took the Veteran's complaints of pain (or lack thereof) and other functional loss into account when calculating his range of motion. Symptoms causing functional limitations, such as pain, incoordination and fatigue, are characteristics that the Veteran is competent to provide testimony, as they are perceived by him through his own senses. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). However, the Board emphasizes that it is not obligated to accept these assertions of symptomatology as fact if they are found to not be credible. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not able to accept the Veteran's own complaints of functional limitation factually accurate, given the assessment of the VA examiners that such complaints are inconsistent with the clinical observations. There is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court specifically discounted the notion that the highest disability ratings are warranted under DCs 5260 and 5261 where pain is merely evident as it would lead to potentially "absurd results." Id. at 10-11 (limiting the scope and application of its prior holding in Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991)). Moreover, as discussed, the 2011 VA examination took into account the Veteran's range of motion, his range of motion with pain, and whether there would be any additional loss of motion (functional loss). Further, the range of motion of the right knee described on the examinations establish that ankylosis is not present. No examiner has suggested that genu recurvatum is present. Therefore, no criterion for a compensable evaluation based on limitation of motion may be assigned under DC 5256 or 5263. Notwithstanding the above, the Board notes that the MRI conducted during the Veteran's service disclosed torn meniscal cartilage. The record discloses no indication that the Veteran has undergone surgical removal of the torn meniscal cartilage. The Board notes that no abnormality of meniscal cartilage is shown on radiologic examinations, but no MRI examination, which would be more accurate with respect to cartilage, has been performed. Giving the objective findings of effusion, locking, crepitus, and pain, the preponderance of the evidence establishes that torn meniscal cartilage remains present in the Veteran's right knee, warranting a 20 percent evaluation under DC 5258. As the findings of locking are separate from the findings of instability, and pain and effusion are not encompasses within the criteria for evaluating instability under DC 5257, the 20 percent evaluation under DC 5258 is separate from the 10 percent assigned under DC 5257. The 20 percent rating assigned under DC 5258 is the maximum schedular evaluation which may be assigned under that Diagnostic Code, so no further discussion of entitlement to a higher rating under DC 5258 is required. The Board has also considered whether the Veteran's right knee disability increased or decreased in severity during any portion of the appeal period. The Board finds no evidence that any criterion for a higher rating than the 10 percent assigned for instability or the 20 percent assigned for torn meniscal cartilage is appropriate during any portion of the appeal period. There is no evidence to support an additional, separate, compensable rating during any portion of the appeal. Extraschedular consideration The Board has also considered whether the Veteran's right knee disability presents an exceptional or unusual disability picture, including during any portion of the pendency of this appeal, so as to render impractical the application of the regular schedular standards during one or more periods. If there is an exceptional or unusual disability picture, during any of the periods on issue in this appeal, rendering impractical the application of the regular schedular standards, then referral to the appropriate officials for consideration of extra-schedular ratings during the exceptional period is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). As noted, first, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, 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 and frequent periods of hospitalization. If this is the case, 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 for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Here, the rating criteria reasonably describe the Veteran's right knee disability level and symptomatology, as the rating schedule provides for additional or more severe symptoms than currently shown by the evidence. As discussed at length above, the Board has considered each right knee disability symptom, including pain, instability, locking, and noncompensable limitation of motion. The Board does not find that there is any symptom or factor of right knee disability which is not considered in the assigned ratings. The Board finds no symptom that is not encompassed in the schedular rating for any considered period. Thus, the Veteran's disability picture is contemplated by the rating schedule under the ratings assigned. The assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Even if the Board determined that the rating criteria do not address all of the effects of the Veteran's service-connected right knee disability, the Veteran's right knee disability does not present exceptional or unusual circumstances. As noted, the Veteran has been able to continue his full-time employment despite right knee disability. He has not required hospitalization for right knee disability. The Board does not find this to be an exception or unusual disability picture which might suggest that the Veteran cannot be adequately compensated by the regular rating schedule. The Board declines to refer the matter for extraschedular consideration. Finally, although the Veteran has submitted evidence of medical disabilities, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable. He reports full-time employment as a mechanic. See VA examination dated April 2011. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER The appeal for an evaluation in excess of 10 percent for right knee instability is denied. A separate, compensable, 20 percent evaluation for dislocated semilunar cartilage, right knee, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs