Citation Nr: 1318842 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 05-03 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for right knee arthritis prior to January 24, 2013. 2. Entitlement to an evaluation in excess of 20 percent for right knee arthritis from January 24, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to June 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of April 2003 and April 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, as well as January 2010 and March 2013 decisions by the Appeals Management Center (AMC) in Washington, D.C. In December 2009, the Board denied entitlement to an evaluation in excess of 20 percent for the service-connected residuals of right knee injury, to include an anterior cruciate ligament defect and scarring. At that same time, the Board granted a "separate and distinct" 10 percent evaluation for right knee arthritis, and remanded the claim for additional development regarding the issue of entitlement to an evaluation in excess of 10 percent for right knee arthritis. In July 2011, the Board again remanded the issue of entitlement to an evaluation in excess of 10 percent for right knee arthritis for additional development. The Board specifically requested that the RO obtain any temporary folders in existence, and consolidate those folders with the Veteran's claims folder. That development has now been accomplished. In September 2012, the Veteran's case was once again remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. Prior to January 24, 2013, the Veteran's right knee arthritis was not manifested by either a limitation of flexion to 30 degrees, or a limitation of extension to 15 degrees. 2. From January 24, 2013, the Veteran's right knee arthritis has not been manifested by either a limitation of flexion to 15 degrees, or a limitation of extension to 20 degrees. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for arthritis of the right knee prior to January 24, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2012). 2. The criteria for an evaluation in excess of 20 percent for arthritis of the right knee from January 24, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in April 2004, August 2007, April 2008, and February 2010 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Increased Rating In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, including those offered during the course of a hearing before the undersigned in February 2008, as well as both VA and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 18 Vet. App. 122, 128-30 (2000). The Veteran seeks entitlement to an increased evaluations for service-connected arthritis of the right knee. In pertinent part, it is contended that manifestations of that disability are more severe than presently evaluated, and productive of a greater degree of impairment than is reflected by the respective 10 and 20 percent schedular evaluations now assigned during periods at issue. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4. Where there is a question as to which of two evaluations apply, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in the Veteran's condition, it is necessary to consider the Veteran's complete medical history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of that disability. See Francisco v. Brown, 7 Vet. App. 55(1994). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Ratings shall be based as far as practicable upon the average impairment of earning capacity, with the additional proviso that the Secretary shall, from time to time, adjust the schedular ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluation is found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve, on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as a marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In the present case, in December 2009, the Board awarded a separate 10 percent evaluation for right knee arthritis. That 10 percent evaluation was subsequently effectuated by a rating decision in January 2010. In a subsequent rating decision of March 2013, the RO awarded a 20 percent evaluation for right knee arthritis, effective from January 24, 2013, the date of a VA examination. At a VA orthopedic examination in February 2003, the Veteran complained of mild swelling "on occasion," with a lot of pain primarily over the medial joint margin, but also, to some extent, laterally. Additionally noted was a "knife-like" pain through the anterior aspect, with some crepitation on flexion and extension. On physical examination, there was marked tenderness around both the medial and lateral joint margins, as well as some ridging over the medial compartment and prominence which was somewhat tender. Additionally noted was a mild joint effusion on the right. Range of motion measurements showed a slight limitation of motion with extension to 0 degrees and flexion to 135 degrees. At a May 2005 VA orthopedic examination the Veteran denied any problems with locking or effusion. Physical examination of the right knee showed a range of motion which was markedly limited, and that flexion was only possible to 100 degrees out of a normal range of 135. Extension was within normal limits to 0 degrees. Radiographic studies of the right knee showed mild narrowing of the joint space in the medial compartment, as well as some narrowing of the patellofemoral compartment. Further noted was a mild spurring in the superior margin of the patella, though with no joint effusion. There was no evidence of any fracture or dislocation. In the opinion of the examiner, the Veteran's right knee displayed a marked limitation of motion in flexion, which resulted in pain when forced, and accompanying "obvious limitation." At the time of an August 2008 VA orthopedic examination the Veteran complained of right knee pain when walking upstairs, but was able to descend stairs without difficulty. At the time of examination, there were neither constitutional symptoms not incapacitating episodes of arthritis. The Veteran, however, reported right knee pain, stiffness, and repeated effusion. On physical examination right knee motion was from 0 to 105 degrees, with pain beginning at 105 degrees. Passive range of motion was likewise from 0 to 105 degrees. Range of motion against strong resistance was from 0 to 90 degrees, with pain beginning at 45 degrees, and ending at 90 degrees. Limitation of motion on repetitive use was reportedly from 0 to 105 degrees. Extension was from 90 to -30 degrees, with passive range of motion from 90 to -20 degrees. Range of motion against strong resistance was from 90 to -30 degrees, with pain beginning at -30 degrees. Limitation of motion on repetitive use was reported as from 0 to -35 degrees, with additional limitation of motion attributable to pain. Examination revealed some crepitation, but no evidence of "clicks or snaps," or grinding. Active and passive extension against gravity was from 90 to 0 degrees. Range of motion against strong resistance was from 90 to -10 degrees. According to the examiner, the effect of the Veteran's right knee problem on his daily activities was moderate. During the course of VA outpatient treatment in October 2008, the Veteran complained of pain, primarily on the medial side of his right knee. Physical examination showed a clinical appearance consistent with osteoarthritis. Further examination showed evidence of some effusion, though with full knee motion with some soreness at the extremes of flexion. According to the examiner, there was some discomfort on patellofemoral compression, as well as when palpating the medial side of the right knee. Radiographic studies showed some early degenerative changes, but "nothing really severe." At a January 2009 VA outpatient treatment the Veteran complained of difficulty with steps. Moreover, he reported that the right knee would become "stiff and tight" with prolonged sitting. Physical examination showed a lack of full extension of the right knee when compared to the left, in both standing and supine positions. The Veteran exhibited a mild "spring sign," accompanied by pain with passive extension. There was patellofemoral crepitus bilaterally, though somewhat more symptomatic on the right. There was tenderness to palpation along the medial and lateral joint lines of the right knee, and along the medial tibial plateau. The Veteran was able to flex to approximately 120 degrees. The diagnosis was right knee arthritis. An April 2009 right knee arthroscopy revealed severe degenerative arthritis, as well as chondromalacia of the medial compartment and patellofemoral joint. In an attempt to clarify the ambiguous range of motion findings on VA examination in August 2008, the Veteran was afforded additional VA examinations in December 2009 and March 2010. At the time of the December 2009 examination, the Veteran complained of weakness, stiffness, swelling, heat, a lack of endurance, fatigability, and tenderness of his right knee. He denied any problems with redness, deformity, drainage, effusion, or pain. On physical examination of the right knee, there was evidence of weakness, tenderness, and guarding of movement. There were no signs of edema, abnormal movement, effusion, redness, heat, misalignment, or drainage. Right knee range of motion study revealed flexion to 95 degrees, with extension to 0 degrees, accompanied by pain at 95 degrees. Repetitive range of motion measurements showed flexion to 75 degrees, with extension, once again, to 0 degrees. Right knee joint function was additionally judged to be limited following repetitive use by pain, weakness, and a lack of endurance. There was no sign of incoordination. Radiographic studies revealed degenerative arthritic changes, with minor narrowing of the medial joint compartment, and spurring of the tibia and patella. At a March 2010 VA orthopedic examination the Veteran complained of intermittent right knee pain, with some swelling. According to the Veteran, his pain was "throbbing" in nature, and somewhat worse when seated with his knees bent. By the Veteran's own admission, his right knee was actually better when he was up walking or in a recliner with his knees bent. On physical examination, the Veteran's right knee extended to -5 degrees, with flexion to 70 degrees without pain, and to 100 degrees with pain. There was a jog of medial laxity at 30 degrees of flexion, though the Veteran's knee was stable at full extension. There was scant effusion. The pertinent diagnosis was osteoarthritis, status post trauma and arthrotomy. At an August 2010 VA examination the Veteran complained of weakness, tenderness, and pain when walking. The Veteran denied incapacitation over the prior 12 months. On physical examination, the Veteran's right knee showed evidence of weakness, tenderness, and some guarding of movement. There were no signs of edema, abnormal movement, effusion, redness, heat, deformity, misalignment, or drainage. Range of motion study revealed full extension to zero degrees and flexion to 105 degrees. Pain was present at 105 degrees. Range of motion measurements following repetitive movement showed flexion to 90 degrees, with extension once again to 0 degrees. Right knee function on the right was additionally limited following repetitive use by pain, fatigue, weakness, and a lack of endurance. It was not additionally limited by incoordination. Radiographic studies showed degenerative arthritic changes, with spurring of the intercondylar eminence of the tibia, and mild narrowing of the medial right knee joint, in conjunction with a small superior patellar bone spur. At a January 2013 VA orthopedic examination the Veteran complained of pain which was worse medially with movement, in addition to stiffness following prolonged sitting in one position, such as in a chair or driving. Reportedly, this was as if his right knee were "bound up." The Veteran reported that he experienced difficulty fully straightening his right knee until he had walked for approximately five minutes. The Veteran reported feeling right knee weakness following activities such as walking or swimming, difficulty climbing stairs, and that the joint was "painful and weak." When questioned regarding flare ups, the Veteran complained of twice weekly stiffness with decreased motion following prolonged sitting. The examiner estimated that the appellant lost approximately 20 degrees of full extension for 5 to 10 minutes during "flare ups." Additionally noted were flare ups of increased pain following overuse, such as attempting to walk on uneven ground, or for long distances, though these were not associated with any perceived loss of range of motion. Range of motion study showed flexion to 85 degrees, with objective evidence of painful motion beginning at 10 degrees. There was no limitation of extension. Following three repetitions right knee flexion was to 85 degrees, with extension to 0 degrees. The examiner found that after repetition the s right knee exhibited less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and weight bearing. The Board observes that in addition to right knee arthritis service connection is in effect for the residuals of a right knee injury, to include an anterior cruciate ligament defect and scar, evaluated as 20 percent disabling on the basis of recurrent subluxation and/or lateral instability. Accordingly, right knee arthritis is evaluated primarily on the basis of pain and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Arthritis due to trauma is evaluated as degenerative arthritis. Degenerative arthritis established by X-ray findings is evaluated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Pursuant to applicable law and regulation, a 10 percent evaluation is warranted where there is evidence of a limitation of flexion to 45 degrees, or a limitation of extension to 10 degrees. In like manner, a 20 percent evaluation is warranted where there is evidence of a limitation of flexion to 30 degrees, or a limitation of extension to 15 degrees. A 30 percent evaluation, under those same laws and regulations, requires demonstrated evidence of a limitation of flexion to 30 degrees, or a limitation of extension to 20 degrees. See 38 C.F.R. § 4.71a , Diagnostic Codes 5260, 5261. Finally, the United States Court of Appeals for Veterans Claims (Court) has held that Diagnostic Code 5003 and 38 C.F.R. § 4.59, when read together, provide that painful motion of a major joint (such as the knee) caused by degenerative arthritis, where such arthritis is established by X-ray findings, is deemed to be limited motion, and, as such, is entitled to a minimum 10 percent rating per joint, combined under Diagnostic Code 5003, even though there is no actual compensable limitation of motion. See Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Applying these principles to the aforementioned evidence, it is clear that, prior to January 24, 2013, no more than a 10 percent evaluation was warranted for the Veteran's right knee arthritis. While it is true that, during the period in question, the Veteran suffered from a limitation of motion accompanied by pain, as well as intermittent effusion, at no time prior to January 24, 2013 did the Veteran exhibit a limitation of flexion to 30 degrees, or a limitation of extension to 15 degrees sufficient to warrant the assignment of a greater than 10 percent evaluation. In fact, during that period, the Veteran exhibited essentially full extension, and, with rare exception, flexion of no less than 95 degrees. Effective January 24, 2013, the date of a VA orthopedic examination the Veteran was assigned a 20 percent evaluation for right knee arthritis apparently, on the basis of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. There is no regulatory basis for this assignment. Moreover, it is clear that, beginning on January 24, 2013, no more than a 20 percent evaluation was warranted for right knee arthritis. While the Veteran experienced pain beginning at 10 degrees of flexion of his right knee, he was able to flex that knee to 85 degrees. Extension was to 0 degrees, i.e., to normal. Following repetitive motion, the Veteran was still able to flex his right knee to 85 degrees. In any case, since January 24, 2013, there is no evidence that the Veteran experiences a limitation of flexion to 15 degrees, or a limitation of extension to 20 degrees sufficient to warrant the assignment of a greater than 20 percent evaluation for his service connected right knee arthritis. The Board considered the decision in Hart v. Mansfield, 21 Vet. App. 505 (2007) as to whether "staged" ratings are warranted. In the case at hand, given the symptomatology attributable to right knee arthritis, that disorder is appropriately rated. Moreover, the evidence shows that the Veteran's right knee arthritis is appropriately contemplated by the Rating Schedule. Accordingly, referral for consideration of an extraschedular evaluation is not warranted. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). ORDER Entitlement to an evaluation in excess of 10 percent for service-connected arthritis of the right knee prior to January 24, 2013 is denied. Entitlement to an evaluation in excess of 20 percent for service-connected arthritis of the right knee from January 24, 2013, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs