Citation Nr: 1318358	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  07-17 339A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1. Entitlement to a rating higher than 20 percent for status post posterior horn medial meniscus tear with arthroscopy of the left knee prior to March 19, 2013.

2. Entitlement to rating higher than 40 percent for this left knee disability since March 19, 2013, which is now rated as limitation of extension of the left knee.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from August 1964 to October 1984.

He appealed to the Board of Veterans' Appeals (Board/BVA) from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, confirmed and continued an existing 20 percent rating for his left knee disability, then characterized as status post posterior horn medial meniscus tear with arthroscopy.

Another RO decision since issued in January 2010, during the pendency of his appeal for a higher rating for this disability, granted a temporary 100 percent rating for this left knee disability under the provisions of 38 C.F.R. § 4.30 ("Paragraph 30") from September 11, 2008 to November 30, 2008, to compensate him for his convalescence following surgery.  The prior 20 percent rating for this disability resumed as of December 1, 2008.  The Board's analysis of this claim, therefore, turned to whether a rating higher than 20 percent was warranted for this left knee disability at times when he did not have that temporary 100 percent rating.

In October 2012, in support of this and another claim he also had appealed, he testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a Travel Board hearing.  Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U. S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  Here, during the Travel Board hearing, the presiding VLJ noted the basis of the prior determination and noted the elements of the claim that were lacking to substantiate it.  In addition, the presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding and that might have tended to substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conducting of that Travel Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim.  As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) allowing the Board to proceed with its consideration of the appeal.

Not too long thereafter, in a February 2013 decision the Board granted the other claim the Veteran had appealed - specifically, for a rating higher than 10 percent for his service-connected barotraumic vestibular vertigo disorder.  The Board increased the rating for this disability from 10 to 30 percent retroactively effective as of September 7, 2004.  However, the Board instead remanded this remaining claim for a rating higher than 20 percent for the left knee disability to the RO via the Appeals Management Center (AMC) for further development and consideration, including especially to obtain any outstanding VA or private treatment records dated since 2010 and for a VA Compensation examination reassessing the severity of this left knee disability.

Following completion of that requested development, the AMC issued a decision in April 2013 increasing the rating for this left knee disability from 20 to 40 percent as of March 19, 2013, the date of the Veteran's VA compensation examination on remand.  The AMC also, effective as of that date, recharacterized this disability as limitation of extension of the left knee.  The Veteran since has continued to appeal for an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed he is seeking the highest possible rating for this disability absent express indication to the contrary).  So his appeal of this claim now concerns whether he was entitled to a rating higher than 20 percent prior to March 19, 2013, and whether he has been entitled to a rating higher than 40 percent since.


As a further preliminary matter, whereas the August 2006 RO rating decision under review also denied a claim for a total disability rating based on individual unemployability (TDIU), contemporaneously with this increased-rating claim concerning the left knee disability, the Veteran did not appeal the denial of his TDIU claim.  He initially filed a timely Notice of Disagreement (NOD) initiating an appeal of several claims, including for a TDIU, regarding which a May 2007 Statement of the Case (SOC) was issued, but later indicated in his June 2007 filing (accepted as a Substantive Appeal) that he was specifically appealing the claims for increased ratings for his vertigo disorder and left knee disorder.  Thus, although he started, he did not complete the steps necessary to perfect his appeal of the TDIU claim to the Board.  See 38 C.F.R. § 20.200 (2012) (an appeal to the Board consists of a timely filed NOD in writing and, after issuance and receipt of an SOC, a timely filed substantive appeal, e.g., a VA Form 9 or equivalent statement).  Moreover, the TDIU claim was premised on numerous service-connected disabilities, not only the left knee and vertigo disorders certified as then on appeal to the Board.  Thus, the TDIU claim was not, and still is not, "inextricably intertwined" with the increased-rating claims concerning the vertigo and left knee disorders that, in turn, would have permitted or now permit the Board to assume additional jurisdiction over this TDIU claim.  See VAOPGCPREC 6-96 (Aug. 16, 1996).  See, too, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two claims are "inextricably intertwined" when they are so closely tied together that a final decision on one claim cannot be rendered until a decision on the other); Parker v. Brown, 7 Vet. App. 116 (1994).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that VA must address the issue of entitlement to a TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record.  So, generally speaking, a TDIU claim is not a claim separate or distinct from an underlying increased-rating claim.  See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased-compensation claims apply to a TDIU claim); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (a TDIU claim is informally raised when a Veteran:  (1) submits evidence of a medical disability; (2) makes a claim for the highest possible rating for that disability; and (3) submits evidence of unemployability)).  

Similarly, in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court held it was inappropriate to have treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his underlying disability, which in that case was posttraumatic stress disorder (PTSD).  Citing Rice, the Mayhue Court reasoned that a request for a TDIU is not a separate claim for benefits, rather, an attempt to obtain an appropriate rating for a disability or disabilities.  Thus, the Court explained, the Board should have considered evidence of unemployability as far back as the date of the underlying claim.

But there must be cogent evidence of unemployability in the record.  See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  Moreover, as explained in Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009), an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met.  And this was not the situation here inasmuch as the Veteran did not predicate or preface his TDIU claim only on the severity of his vertigo and left knee disorders.  So the Board is continuing not to accept jurisdiction over the previously raised TDIU claim.


FINDINGS OF FACT

1. The Veteran did not have more than moderate impairment of his left knee, including on account of recurrent subluxation and/or lateral instability, prior to March 19, 2013, or any cognizable left knee instability since.

2. Since March 19, 2013, he has had left knee extension limited to 40 degrees, including with consideration of associated pain and functional loss, but to no greater level.



CONCLUSIONS OF LAW

1. The criteria are not met for a rating higher than 20 percent for the status post posterior horn medial meniscus tear with arthroscopy of the left knee prior to March 19, 2013.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5257 (2012). 

2. The criteria also are not met for a rating higher than 40 percent for the left knee disability since March 19, 2013, now characterized as limitation of extension.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5257, 5260 and 5261 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012).

Upon receipt of a complete or substantially complete application for benefits, VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf.  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 CFR § 3.159(b)(1) (2012).

Through November 2005 correspondence, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).

Ideally, VCAA notice should precede the initial adjudication of the claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if it was not provided prior to initially adjudicating the claim or, if provided, it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in an SOC or supplemental SOC (SSOC), is sufficient to rectify ("cure") the timing defect in the provision of the notice because the intended purpose of the notice is still served in that the Veteran is still given ample opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006

The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears the burden of proof of not only establishing there is a VCAA notice error (such as in timing or content) but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).


In a claim, as here, that originated as a claim for an increased disability rating, meaning the disability at issue already had been determined service connected in years past, so not concerning an initial rating, the VCAA requires that VA notify the claimant that to substantiate the claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect the worsening has on employment. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1278 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  The notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask the VA to obtain) that are relevant to establishing his or her entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular claimant's circumstances, only instead generic; that is, VA need not notify a claimant of alternative DCs that may be considered or notify him of any need for evidence demonstrating the effect that the worsening of the disability has on the particular claimant's daily life.  Vazquez-Flores, 580 F.3d at 1278.

Here, the VCAA notice correspondence preceded the August 2006 rating decision on appeal, and thus met the standard for timely notice.  It also, for the reasons mentioned, was satisfactory in content.

The RO/AMC furthermore has taken appropriate action to comply with the additional duty to assist the Veteran in fully developing his claim through obtaining records of his VA outpatient treatment and arranging for him to undergo VA Compensation examinations assessing and reassessing the severity of his left knee disability.  See 38 C.F.R. § 4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition).  In furtherance of his claim, he has provided several personal statements and a lay statement from another individual as well.  The Veteran also, as already alluded to, had a Travel Board hearing concerning his claim.  Indeed, it was partly because of his hearing testimony that the Board elected to remand, rather than immediately decide, his claim in February 2013.  Since that remand, there is no indication of any further relevant evidence or information still needing to be obtained that is obtainable.  The record as it now stands includes sufficient evidence to decide this claim, both as concerning the severity of the disability prior to and since March 19, 2013.  Thus, no further assistance with this claim is required.

In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide to the appellant regarding what further evidence he should submit to substantiate his claim.  Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004).  Accordingly, the Board will proceed with its adjudication of the claim on its merits.

Background and Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 4.3.  Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.



In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed, actually from one year prior, until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this circumstance the rating must be "staged" to reflect this variance.

When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss.  DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995).  This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria.  Id.  See also 38 C.F.R. §§ 4.40, 4.45 and 4.59.

Functional loss due to pain is rated at the same level as functional loss where motion is impeded.  Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in.  See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995).  The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts.  Burton v. Shinseki, 25 Vet. App. 1 (2011).


Pain and painful motion must be objectively confirmed, however, such as by visible expression, and if a Veteran already has the maximum rating assignable based on limitation of motion, it is not necessary to consider these provisions.  Johnston v. Brown, 10 Vet. App. 80 (1997).  Moreover, the Court has clarified that, although pain may be a cause or manifestation of functional loss, pain itself does not constitute functional loss.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Id.; see 38 C.F.R. § 4.40.

As indicated, the Veteran's service-connected left knee disability originally was assigned a 20 percent evaluation and characterized as status post posterior horn medial meniscus tear with arthroscopy, left knee, rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257.

Upon receipt of updated clinical findings, the applicable disability rating was increased to 40 percent, effective March 19, 2013, and the underlying condition deemed as limitation of left knee extension.  The applicable rating provision changed to Diagnostic Code 5261.

The VA Rating Schedule provides that, under Diagnostic Code 5257, "other" knee impairment is evaluated based upon recurrent subluxation and/or lateral instability.  This Diagnostic Code provides that a 10 percent disability rating is warranted for slight consequent disability, a 20 percent rating for moderate consequent disability, and a maximum 30 percent evaluation for severe consequent disability.

The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes, including this one, are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Diagnostic Code 5260 pertains to limitation of leg flexion, and provides for a noncompensable rating when flexion is limited to 60 degrees.  A 10 percent rating requires flexion limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; and the highest available 30 percent rating requires flexion limited to 15 degrees.  38 C.F.R. § 4.71a.

Diagnostic Code 5261 provides that limitation of extension will be assigned a noncompensable rating when it is limited to 5 degrees.  A 10 percent evaluation requires extension limited to 10 degrees; a 20 percent rating requires extension limited to 15 degrees; a 30 percent rating requires extension limited to 20 degrees; a 40 percent rating requires extension limited to 30 degrees; and a maximum 50 percent rating is assigned when extension is limited to 45 degrees.  Id.  

Under Diagnostic Code 5003, degenerative arthritis will be rated on the basis of limitation of motion of the specific joint or joints involved.  When however limitation of motion at the joint(s) involved is noncompensable, a 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under this diagnostic code.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Where there is no limitation of motion but X-ray evidence of involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned.  A 20 percent rating is assigned where the above is present but with occasional incapacitating exacerbations.  Id.   

Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion.  38 C.F.R. § 4.71, Plate II.

VA's Office of General Counsel determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violation of the rule against pyramiding (at 38 C.F.R. § 4.14), regardless of whether the limited motions are from the same or different causes.  VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004).

VAOPGCPREC 23-97 held that a claimant also may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively.  See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997), 62 Fed. Reg. 63,604 (1997).  In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must at least meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998).  VA's General Counsel further explained however that, if a Veteran has a disability rating under DC 5257 for instability of the knee, a separate rating for arthritis also could be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  This is because, read together, DC 5003 and 38 C.F.R. § 4.59 provide that painful motion due to degenerative arthritis, which is established by X-ray, is deemed to be limitation of motion and warrants the minimum rating for a joint, even if there is no actual limitation of motion.  See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

Also potentially applicable is Diagnostic Code 5258, which provides for assignment of a 20 percent rating for dislocation of the semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint.  

Diagnostic Code 5259 provides for the assignment of a single 10 percent rating for removal of the semilunar cartilage, symptomatic.

In connection with the claims before the Board, the Veteran underwent VA compensation examination of the joints in December 2005, including with regards to his left knee in particular.  He described a history of prior surgery on the left medial meniscus both during and since separation from military service.  On objective examination, the left knee was capable of range of motion from 0 to 135 degrees; there was some crepitation on extension, although he was able to complete this motion to 0 degrees.  Lachman and McMurray's tests were negative.  There was no lateral ligament laxity.  He did show well-healed scars of arthroscopic surgery.  There was some tenderness on patellar compression but no crepitation.  There had been a question of atrophy of the left leg versus the right, and measurements showed the thigh at 42-cm on the right and 41-cm on the left, and the calf at 37-cm on the right and 36-cm on the left.  He did have a steady gait and used no assistive devices.  The diagnosis was, in relevant part, degenerative arthritis of the left knee with "limitations as above."

In her June 2007 statement, the Veteran's spouse indicated her observation that his knee problems caused him to partially drag his foot frequently while walking.  His left leg could not squat, there was no strength for that movement, and to attempt this caused too much pain.  He could not run at all because of the pain the impact caused.  He could walk at a regular pace for no more than 15 minutes before indicating that he was in too much pain.  He extremely favored his left leg when he rose from a sitting position.  He reportedly had instability and pain in his knee almost constantly.  He had to carry and lift objects very carefully and not much weight at a time due to the stress extra weight placed upon the left knee.

VA outpatient records reflect that, in July 2008, the Veteran presented with lateral joint line tenderness of the left knee, with mild effusion, no ligamentous instability, and pain on bounce maneuver.  He was to be scheduled for a lateral meniscectomy of the knee soon.  In September 2008, he underwent arthroscopic surgery at a VA medical facility to repair a tear of the lateral meniscus in the left knee.  The specific operative procedure was an arthroscopic microfracture to the left medial femoral condyle and chondroplasty to the left medial femoral condyle.  There were no complications of the procedure.  When evaluated in October 2008 by a physical therapist following the procedure, the Veteran had left knee range of motion of from 0 to 105 degrees.  

On VA compensation examination in September 2010, the Veteran reported that he wore a knee brace all of the time, rendering his pain a lot more tolerable.  X-rays from one year previously showed alignment of the left knee remained near anatomic, with no change in minimal symmetrical degenerative joint disease.  The reported summary of joint symptoms included left knee giving way, instability, pain, stiffness, incoordination and decreased speed of joint motion.  There were no reported instances of locking up.  There were flare-ups of degenerative joint disease.  There were no incapacitating episodes of arthritis.  He used a brace as an assistive aid always.  On physical examination, his gait was antalgic.  There was no other evidence of abnormal weight bearing, or loss of bone or part of a bone.  There was present left knee tenderness and guarding of movement, as well as crepitation and clicks and snaps.  There was no grinding or instability.  There was subpatellar tenderness.  There was no meniscus abnormality.  Range of motion in the left knee was from 0 to 120 degrees, with no additional limitations after three repetitions of range of motion.  There was no joint ankylosis.  The diagnosis given noted the surgical history, along with radiological evidence of degenerative joint disease.  There was noted significant effects on usual occupation, with the impact of decreased manual dexterity.  The Veteran had retired from law enforcement due to the left knee condition.  

Thereafter, VA outpatient records denote in July 2011 a course of Supartz injections intended to lubricate the left knee joint, with some residual complaints of pain.  During a September 2011 follow-up evaluation, the Veteran reported that his left knee condition had not improved much, though he was generally able to tolerate it with anti-inflammatory medications and brace use.  

In accordance with the Board's February 2013 remand directive, the Veteran underwent VA re-examination the following month.  The diagnosis at the outset was left knee osteoarthritis.  Reportedly, flare-ups caused increased pain and swelling, and decreased mobility for one to two days.  Range of motion was measured at from 40 to 90 degrees.  There was no additional range of motion lost due to painful motion, including on repetitive testing.  There was left knee joint tenderness and/or pain on palpation.  Muscle strength testing was 5/5 on the left side.  Joint stability tests were all normal, including anterior, posterior and medial-lateral instability tests.  There was no history of recurrent patellar subluxation or dislocation.  It was noted that he had a history of a meniscus (semilunar cartilage) condition.  There had been a meniscal tear, with frequent episodes of joint pain, but otherwise no joint effusion, joint "locking" or meniscal dislocation.  According to the VA examiner, the Veteran did not have any residuals signs or symptoms due to the history of meniscectomy surgery.  He did not appear to have any residual signs or symptoms due to the 2008 arthroscopic surgery in particular.  He did regularly use a brace as an assistive device.  There was X-ray evidence of traumatic arthritis, but not patellar subluxation.  

The VA examiner further observed that the Veteran's left knee condition impacted his ability to work, in that the left knee osteoarthritis would impose work restriction in fields of labor requiring light and heavy manual labor and would restrict his ability to lift, pull or carry light and heavy loads for prolonged and short periods of time.  It was considered that the left knee osteoarthritis would affect or impose work restriction in fields of labor including sedentary jobs and would affect his reliability, productivity, ability to concentrate and follow instructions, and ability to interact with co-workers and supervisors.  

Having duly considered this collective body of evidence, the Board must continue the existing assigned disability compensation scheme for the Veteran's service-connected left knee disorder.  With regard to, initially, the component of service-connected disability of left knee instability, the Board has reviewed the facts, but cannot ascertain any grounds to increase this evaluation to the maximum allowable 30 percent rating under Diagnostic Code 5257 corresponding to severe "other" impairment of the knee, including recurrent subluxation and/or lateral instability.  On repeated VA examination, beginning in December 2005, objective evaluation noted the Veteran to have no problem whatsoever with ligamentous instability, including on numerous tests to measure this specific symptom.  Nor for that matter was there a finding of recurrent knee joint subluxation.  Essentially, there was little indication of quantifiable or readily detectable impairment of the left knee joint, other than limitation of motion alone, such that it would fall within the ambit of Diagnostic Code 5257.  The Board readily acknowledges the Veteran's spouse's 2007 statement describing her observations of left knee instability, and she is indeed competent to report her own observations.  As to what ultimately best informs the Board's review of the evidence, however, a view must be undertaken as to what the evidence in its entirety shows, including VA medical history and Compensation and Pension examination findings, not only the available lay witness statements.  See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.").  See also Ardison v. Brown, 6 Vet. App. 405, 407 (1994).  In this instance, the sheer lack of objective evaluative information confirming left knee instability (or remaining qualifying "other" impairment of the left knee) on repeated VA examination leaves the Board without a tenable justification to finding a worsening in severity to the 30 percent level.  Indeed, there is little to substantiate the existing 20 percent evaluation, for moderate impairment under Diagnostic Code 5257 -- the Board raises this point not to call into question the existing disability evaluation in any manner, but to show that no higher evaluation is assignable.  As such, the claim for higher than a 20 percent evaluation for status post posterior horn medial meniscus tear with arthroscopy, left knee (rated on the basis of instability), prior to March 19, 2013, must be denied.  

The Board likewise finds a separate compensable rating not assignable for left knee instability from March 19, 2013 onwards.  Although beginning at this point in time the RO/AMC began evaluating left knee disability under a different framework pursuant to the Rating Schedule, that of limitation of extension under Diagnostic Code 5261, it is feasible that a separate compensable rating could be assigned since March 19, 2013, were there indeed non-overlapping symptomatology of knee joint instability.  See 38 C.F.R. § 4.14.  See also VAOPGCPREC 23-97.  However, as indicated above, the Veteran did not have documented left knee instability or other qualifying impairment under Diagnostic Code 5257 prior to March 19, 2013, thereby ruling out an ongoing level of disability.  Nor did his March 2013 VA examination reflect any left knee instability.  Although he is now wearing a left knee brace that on the surface might improve any residual instability, presumably the VA examiner took this fact into account when objectively reporting no manifestations of the same.  Accordingly, throughout the time period under appeal, a higher rating based on Diagnostic Code 5257 is not warranted.


Next, as to limitation of motion associated with service-disability, the Board also does not perceive a basis for an increased award of compensation.  Prior to March 19, 2013, VA examinations established noncompensable limitation of motion (applying Diagnostic Codes 5260 and 5261), along with degenerative arthritis, yet this does not equate to a compensable rating under Diagnostic Code 5003 here given the 20 percent already in effect, and that this 20 percent rating was nominally for "moderate" impairment under Diagnostic Code 5257 that was not actually supported by the evidence.  The Board cannot assign an additional 10 percent rating for degenerative arthritis, as the existing 20 percent rating not directly supported by the evidence subsumes any potential separate rating.  As to the timeframe since March 19, 2013, the Veteran is in receipt of 40 percent under Diagnostic Code 5261, corresponding to limitation of extension to 30 degrees.  There is no basis for any higher evaluation on the record, taking into account that there was no further diminution in joint mobility due to pain, fatigue, weakness, or other recognized forms of functional loss.  See Deluca, supra; 38 C.F.R. §§ 4.45, 4.59.  To the extent his left knee joint mobility has appreciably worsened, this fact is already duly recognized in the current evaluation vis-a-vis the now higher 40 percent rating as opposed to the prior lesser rating of 20 percent.

The Board likewise does not find that an increase is warranted under any other available diagnostic code, to include the criteria pertaining to impairment of the cartilaginous structure of the knee.  Whereas the Veteran has undergone partial removal of the left knee cartilage through various medical procedures, the evidence does not show that he now has a resultant symptomatic left knee condition.  There is some joint pain, but there are no signs of associated locking episodes, effusion, or other readily identifiable substantive impairment.  Consequently, a separate compensable rating is not assignable pursuant to Diagnostic Code 5259.  

Aside from the VA Rating Schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations also has been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an 
extra-schedular evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 

Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

The question of an extra-schedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.

In this case, there initially is no basis to find that the Veteran's left knee disability (and all associated components) presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of these criteria.  Essentially, the rating criteria premised upon both knee joint instability and limitation of motion with associated pain and/or discomfort (and some forms of recognized functional loss, per DeLuca v. Brown) fairly accounts for nearly all of his symptoms as presented, including from his descriptions during his VA examination and on other occasions.  The Board has not found that he has distinctly ratable impairment due to damage to the knee cartilage.  There is no indication of further potentially compensable disability in this case.  Thus, the Board cannot conclude that his condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate.  The first stage of the standard for determining availability of an extra-schedular rating not having been met, the potential application of the next two steps becomes a moot issue.

In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

For these reasons and bases, the Board is denying the claims for increased rating for the Veteran's left knee disability throughout the entire time period under consideration.  This determination takes into full account the potential availability of a "staged" rating based upon incremental increases in severity of service-connected disability during the pendency of the claim under review.  And, indeed, in increasing his rating from 20 to 40 percent as of March 19, 2013, he now has what amounts to a "staged" rating under Hart.  The preponderance of the evidence is against higher ratings either prior to or since that date, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



ORDER

A higher rating than 20 percent for status post posterior horn medial meniscus tear with arthroscopy, left knee, prior to March 19, 2013, is denied.

A higher rating than 40 percent for left knee limitation of extension since March 19, 2013, also is denied.




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs