Citation Nr: 1320255	
Decision Date: 06/24/13    Archive Date: 07/02/13

DOCKET NO.  09-41 399	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a left knee disorder, to include as secondary to service-connected residuals of a right knee patella dislocation.

2.  Entitlement to service connection for a right thigh muscle disorder, to include as secondary to service-connected residuals of a right knee patella dislocation.

3.  Entitlement to service connection for a right hip joint disorder, to include as secondary to service-connected residuals of a right knee patella dislocation.

4.  Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected residuals of a right knee patella dislocation.

5.  Entitlement to an increased disability rating greater than 20 percent for residuals of a right knee patella dislocation with surgical repair.  



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel


INTRODUCTION

The Veteran had active service in the United States Navy from January 1996 to December 1998.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

A review of the Virtual VA paperless claims processing system reveals additional, pertinent VA treatment records dated from 2010 to 2012.  However, in the March 2012 Supplemental Statement of the Case (SSOC), the RO indicated that it had reviewed these records in the Virtual VA system.  Thus, there is no prejudice in the Board considering these records.

The Board will adjudicate the issue of entitlement to an increased rating issue for the Veteran's service-connected right knee disability.  However, all four service connection issues on appeal will be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.



FINDINGS OF FACT

1.  The Veteran's residuals of a right knee patella dislocation with surgical repair are not productive of severe recurrent subluxation or lateral instability.   
 
2.  The Veteran's right knee arthritis, associated with her service-connected right knee patella dislocation with surgical repair, exhibits limitation of extension to 10 degrees with consideration of pain and other factors of functional loss.

3.  The Veteran has had the symptomatic removal of semilunar cartilage.


CONCLUSIONS OF LAW

1.  The criteria have not been met for an evaluation in excess of 20 percent for residuals of a right knee patella dislocation with surgical repair.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5257 (2012).

2.  The criteria have been met for a separate 10 percent rating, but no greater, for right knee arthritis with limitation of motion associated with the Veteran's service-connected residuals of a right knee patella dislocation with surgical repair.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261 (2012); VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998).

3.  The criteria have been met for a separate 10 percent rating, but no greater, for the symptomatic removal of semilunar cartilage associated with the Veteran's service-connected residuals of a right knee patella dislocation with surgical repair.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5259 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

For the right knee increased rating claim, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of a VCAA letter from the RO to the Veteran dated in March 2008.  This letter effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing her about the information and evidence not of record that was necessary to substantiate her increased rating claim; (2) informing her about the information and evidence the VA would seek to provide; and (3) informing her about the information and evidence she was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).   

In addition, the March 2008 VCAA letter sent from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Moreover, the March 2008 VCAA notice letter advised the Veteran of the additional notice requirements for increased rating claims.  See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice, and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated).  The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required.  The March 2008 VCAA letter was fully sufficient.  

Thus, the Veteran has received all required notice in this case, such that there is no error in the content of VCAA notice.  See also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  

With regard to the timing of VCAA notice, the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable agency of RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120.  In the present case, the RO issued all required VCAA notice prior to the September 2008 rating decision on appeal.  Thus, there is no timing error.   

With respect to the duty to assist for the increased rating issue, the RO has secured the Veteran's service treatment records (STRs), VA treatment records dated from 1999 to 2012, and several VA examinations.  For her part, the Veteran has submitted personal statements, argument from her representative, and private medical evidence.  The Veteran has not identified any outstanding, available evidence that is relevant to her claim being decided herein.

The Veteran was also afforded VA examinations in April 2008 and March 2012 in connection with her claim for an increased evaluation.  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 Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the Veteran's medical history as well as on an examination and fully address the rating criteria that are relevant to rating the disability in this case. 

The Board does observe that the April 2008 VA examiner did not review the claims file; however, she did review the Veteran's VA medical records and perform a physical examination that addressed the rating criteria.  The Veteran also informed the examiner of her medical history and current complaints. Indeed, the United States Court of Appeals for Veterans Claims (Court) has held that the relevant focus is not on whether a clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since she was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue being decided herein has been met. 38 C.F.R. § 3.159(c)(4). 

The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal.


Governing Laws and Regulations for Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

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.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.  

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of her disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). VA regulation indicates that the Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1.  

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

Although pain may cause functional loss, pain itself does not constitute functional loss.  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.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  

With any form of arthritis, painful motion is an important factor of disability.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Moreover, the Court has held that the application of 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 

Read together, Diagnostic Code 5003 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).  


Analysis

The Veteran's residuals of a right knee patella dislocation with surgical repair have been assigned a 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257 (other impairment of the knee with recurrent subluxation or lateral instability).  This 20 percent rating has remained in effect since March 1, 2003.  

Historically, the Veteran's service treatment records reveal that she injured her right knee in 1998 during service when she fell 10 feet from the wing of airplane and landed on her right knee.  She was diagnosed with a tear of the anterior cruciate ligament, and she was placed in a cast for several weeks.   Following her military service, the Veteran's symptoms worsened, and she underwent right knee anterior cruciate ligament surgery in July 1999 and December 2002.  She contends that her right knee symptoms have continued to worsen over the years.  

The Veteran filed an increased rating claim for her service-connected right knee disability in March 2008.  The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1.  However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  That is to say, the Board must consider whether there have been times when her right knee disability has been more severe than at others, and rate it accordingly.  

At the outset, the Board finds that other diagnostic codes for knee disabilities are not more appropriate because the facts of the case do not support their application.  See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (ankylosis of the knee), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Specifically, the Board notes that there is no evidence of any ankylosis, impairment of the tibia and fibula, or genu recurvatum.  Nor has the Veteran or her representative asserted that has any such disability.  Therefore, the Board will continue to evaluate the right knee instability under Diagnostic Code 5257, as this provides the greatest potential for a higher rating. 

Under Diagnostic Code 5257, a 10 percent disability evaluation is assigned for slight recurrent subluxation or lateral instability.  A 20 percent disability is contemplated when such impairment is moderate, and a 30 percent disability evaluation is warranted when it is severe.   Under Johnson v. Brown, 9 Vet. App. 7, 11 (1996), Diagnostic Code 5257 is not predicated on loss of range of motion; therefore, the provisions of 38 C.F.R. §§ 4.40 and 4.45 as well as the Deluca case do not apply to Diagnostic Code 5257.

The words "slight," "moderate" and "severe" 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 is an element of evidence to be considered by the Board, but 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.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased rating under Diagnostic Code 5257.  The probative lay and medical evidence of evidence of record does not reflect "severe" lateral instability or recurrent subluxation.

Specifically, at the April 2008 VA examination, the Veteran reported having right knee stiffness, pain, swelling, and weakness, as well as heat and redness.  She also indicated that she had giving way, increased fatigue, and lack of endurance.  It was noted that Veteran wore a right knee brace for her instability, but she denied having recurrent dislocation since 2003.  She stated that her right knee disorder causes increased absenteeism and tardiness at work.  The Veteran also reported that her right knee disability causes "moderate" impairment in terms of chores, traveling, shopping, and driving, and "severe" impairment for exercise, recreation, and sports.  Significantly, for purposes of determining the degree of instability, objective testing by the April 2008 VA examiner revealed reveal no varus deformity, no valgus deformity, a negative Lachman's test, a negative McMurray's test, and negative drawer tests.  

Moreover, a June 2008 VA orthopedic consultation note documented a negative McMurray's test, no instability, and no swelling.  

During the March 2012 VA examination, the Veteran reported having right knee pain on a daily basis that was aggravated by weight-bearing activities and ascending and descending stairs, but alleviated with time and rest.  She indicated that has been offered narcotics for pain, but does not wish to take start taking narcotics.  On occasion, she uses NSAIDs.  The Veteran complained of buckling of the right knee with weight-bearing approximately six times in the last six months.  She said that she experienced right knee buckling once a week, but was able to catch herself and not lose balance.  The Veteran also reported having a history of frequent episodes of right knee locking, joint pain, and effusion.  She mentioned right knee effusion occurring once a week resolution with elevation of her right lower extremity.  It was noted that she wore a specialized customized right knee brace approximately four times a week for half of the day each time.  The Veteran also reported flare-ups three times in the last six months lasting 24 hours, which were due to overuse and alleviated with time and rest.  Upon objective examination, muscle strength testing of the right knee was normal.  Notably, for purposes of determining the degree of instability, objective testing by the March 2012 VA examiner again revealed reveal no varus deformity, no valgus deformity, a negative Lachman's test, and a negative posterior drawer test.  Moreover, there was no objective evidence of recurrent patellar subluxation or dislocation, and x-ray evidence did not demonstrate patellar subluxation.  In addition, March 2012 x-rays noted a "stable" postoperative knee

In addition, VA treatment records dated from 2007 to 2012 document right knee instability with right knee tenderness, popping, crepitus, and periodic catching.  It was also noted that she was given a right knee brace.  The Veteran had difficulty walking long distances, sitting for an extended time, and getting up off the ground.  An April 2008 VA treatment record noted "severe" right knee pain, but a March 2010 VA orthopedic consultation note documented the Veteran's statements that her right knee was "doing quite well" and "not giving trouble."  

Overall, the Board finds that the preponderance of the evidence weighs against a finding of severe recurrent subluxation or lateral instability.  There is some evidence, including the Veteran's statements, weighing in favor of her claim.  In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  The Veteran is uniquely suited to describe the severity, frequency, and duration of her service-connected right knee disability.  See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  However, when considering the totality of the evidence, the Veteran's lay assertions regarding the "severe" nature of her right knee instability are not supported by the objective stability testing by VA examiners performed on multiple occasions.  Overall, the clinical observations of the VA examiners throughout the appeal are more probative of the degree of right knee impairment and carry more probative weight.  Moreover, in March 2012, the Veteran even indicated that he right knee was doing well and not causing any trouble.  Accordingly, the signs and symptoms of instability and subluxation are more than adequately reflected in the 20 percent rating assigned under Diagnostic Code 5257. 

Nevertheless, the Board finds that a separate evaluation is warranted for arthritis in the Veteran's right knee.  She has contended that she has additional right knee pathology in the form of arthritis with limitation of motion and pain, as residuals of her service-connected right knee patella dislocation with surgical repair.

The evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided.  38 C.F.R. § 4.14.  However, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  In this regard, VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257.  See VAOPGCPREC 23-97 (July 1, 1997); 62 Fed. Reg. 63,604 (1997).  VA's General Counsel subsequently clarified that 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 Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  Regardless, VA's General Counsel added that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  See VAOPGCPREC 9-98 (August 14, 1998).

VA's General Counsel has further held that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint, without violating the rule against pyramiding.  See VAOPGCPREC 9-2004 (Sept. 17, 2004); 69 Fed. Reg. 59,990 (2004).

Traumatic arthritis under Diagnostic Code 5010 is rated analogous to degenerative arthritis under Diagnostic Code 5003.  Degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  When 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 or group of minor joints 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 Code 5003.  For purposes of rating disability from arthritis, the knee is considered a major joint.  38 C.F.R. § 4.45(f).  The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261.

The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010.  Rating personnel must consider functional loss and clearly explain the impact of pain on the disability.  VAOPGCPREC 9-98.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and, a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  

Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and, a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5261.

With regard to the presence of right knee arthritis, an x-ray obtained in July 2002 revealed mild osteoarthritis.  Similarly, another x-ray obtained by VA in May 2003 showed mild narrowing and degenerative changes, and a March 2012 x-ray of the right knee revealed mild narrowing and degenerative disease.  The Board does note that VA obtained an x-ray in April 2008 that found no evidence of arthritis; however, that finding is outweighed by the other diagnoses by VA medical professionals over the years.  Thus, the Board concludes that the Veteran does have right knee arthritis demonstrated by VA.

Moreover, the Veteran's right knee symptoms for arthritis with limitation of motion represent a distinct and separately disabling condition from the right knee instability under Diagnostic Code 5257.  See again Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that Diagnostic Code 5257 is not predicated on loss of range of motion, such that 38 C.F.R. §§ 4.40 and 4.45 and the Deluca case do not apply to Diagnostic Code 5257).   

Upon review of the evidence, a separate 10 percent rating, but no higher, is warranted for right knee arthritis with limitation of extension under Diagnostic Codes 5003-5261.  38 C.F.R. § 4.7.  Several VA examiners have documented compensable limitation of extension, although the degree of limitation in degrees has varied.  A May 2003 VA examination found the Veteran to have extension to 10 degrees and flexion to 80 degrees with consideration of pain, and the April 2008 VA examiner documented her as having 20 degrees of extension and 60 degrees of flexion with consideration of pain.  A June 2008 VA orthopedic consultation note also revealed 5 degrees of extension and 100 degrees of flexion).  On the other hand, the March 2012 VA examination found her to have extension to 0 degrees and flexion to 140 degrees.  As such, taking into account the provisions of 38 C.F.R. §§ 4.40 , 4.45, 4.59 and the holdings of DeLuca, supra, the Board finds that the evidence is at least in equipoise as to whether the Veteran had compensable limitation of extension.   

Moreover, even if the Veteran's limitation of extension was not compensable under Diagnostic Code 5261, read together, Diagnostic Code 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.  Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991).  See also VAOPGCPREC 9-98 (August 14, 1998).  Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board concludes that a separate 10 percent evaluation is warranted for right knee arthritis.

However, upon review of the evidence, a separate rating beyond 10 percent for the Veteran's right knee arthritis with limitation of motion is not warranted under Diagnostic Code 5261. 38 C.F.R. § 4.7.  The Veteran exhibited limitation of extension to 20 degrees on one occasion during the April 2008 VA examination; however, the remainder of the evidence shows that her extension was not limited to such a degree.  In fact, as noted above, she had extension to 10 degrees in May 2003, 5 degrees of extension in June 2008, and extension to 0 degrees in March 2012.  Evidence of painful motion was also considered, as well as flare-ups.  Thus, the preponderance of the evidence shows that the Veteran did not meet the criteria for a 20 percent evaluation under Diagnostic Code 5261.   

In addition, a separate rating for limitation of flexion is not for application because the evidence overall does not reveal compensable limitation of flexion under Diagnostic Code 5260, even when considering functional loss.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).  For the right knee, limitation of flexion at its worst was noted at 60 degrees.  This is not indicative of a compensable rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  Therefore, a separate compensable rating for limitation of flexion is not warranted.  
                   
Accordingly, the Board concludes the evidence supports a separate 10 percent rating, but no higher, for right knee arthritis with limitation of extension, associated with the Veteran's service-connected right knee residuals of a right knee patella dislocation.  38 C.F.R. § 4.3.   

Lastly, the Board finds that the Veteran is entitled to a separate 10 percent rating for the symptomatic removal of semilunar cartilage under Diagnostic Code 5259.  In this regard, the March 2012 VA examiner indicated that the Veteran had a meniscal tear and underwent a meniscectomy.  It was specifically noted that she had residuals that were identified as chronic pain, chronic effusion, instability, and buckling.  While the symptoms of pain, instability, and buckling are already considered in the Veteran's other current evaluations, the Board notes that effusion is a separate symptom that has not been contemplated.  A 10 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 5259.  Consequently, a rating in excess of 10 percent cannot be assigned.



Extraschedular Consideration

There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration.  38 C.F.R. § 3.321(b)(1).  The Board finds that the Veteran's right knee symptomatology is fully addressed by the rating criteria under which her right knee instability and arthritis is rated.  Because the rating criteria reasonably describe the claimant's disability level and symptomatology for her right knee residual instability and residual arthritis, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96.  The evidence fails to show anything unique or unusual about the Veteran's right knee arthritis and instability that would render the schedular criteria inadequate.  There are no additional symptoms of her right knee arthritis and instability that are not addressed by the Rating Schedule.  The Board has also considered the factors of functional loss listed in 38 C.F.R. §§ 4.40 and 4.45 and 4.59 and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Moreover, although the Veteran's right knee disability may interfere with her work (see e.g., April 2008 VA examination report), such interference is contemplated by the schedular rating criteria.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Separate 20 and 10 percent ratings are adequate to compensate for her loss of working time as the result of her right knee arthritis, instability, and removal of semilunar cartilage with residual effusion.  Moreover, more recent VA treatment records dated from 2010 to 2012 show very minimal symptoms or treatment for the right knee.

because the threshold step of Thun is not met here, and the Veteran's disability picture is contemplated by the Rating Schedule, it is not necessary to consider the second step of whether the claimant has an exceptional disability picture that exhibits other related factors identified in the regulations as "governing norms" such as marked interference with employment or frequent periods of hospitalization.  22 Vet. App. at 116.  See also 38 C.F.R. § 3.321(b)(1).   




ORDER

An increased disability rating greater than 20 percent for right knee instability is denied. 

A separate 10 percent disability rating for right knee arthritis as a residual of the service-connected patella dislocation of the right knee is granted, subject to the laws and regulations governing the payment of VA compensation.

A separate 10 percent disability rating for the symptomatic removal of semilunar cartilage of the right knee is granted, subject to the laws and regulations governing the payment of VA compensation.



REMAND

Before addressing the merits of the remaining four service connection issues on appeal, the Board finds that additional development of the evidence is required.  In particular, a remand is necessary to afford the Veteran a VA examination in connection with her claims for service connection for a left knee disorder, a lumbar spine disorder, a right thigh muscle disorder, and a right hip disorder.  A medical opinion is needed to address the etiology of those disorders, to include whether they are secondary to her service-connected right knee disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006).  

Accordingly, the service connection issues are REMANDED for the following action:

1.  The RO/AMC should obtain any ongoing VA medical records that are not associated with the file.  All attempts to secure these records, and any response received, must be documented in the claims file.  If no records are available, a response to that effect is required and should be documented in the file.

2.  After securing the above treatment records and any other additional evidence, the RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of any left knee, lumbar spine, right thigh muscle, and right hip disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions.  

If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The VA examiner is advised that the Veteran's service treatment records (STRs) dated in April 1997 document that the Veteran was treated for bilateral knee patellofemoral syndrome (PFS) of two months duration.  The Veteran was prescribed medication (Motrin), sports cream, and rest.  No further treatment for the left knee was noted during service.  Post-service, VA treatment records dated in February 2010 and a VA orthopedic consult dated in March 2010 note a diagnosis of bilateral knee chondromalacia patella.  Left knee tenderness, crepitus, and a positive grind test were observed, despite February 2010 VA X-rays of the left knee being unremarkable.  

For the left knee and lumbar spine disorders, the Veteran contends that she has had to adjust her gait due to service-connected right knee pain over the years, thereby putting undue pressure and weight on her left knee and lumbar spine.  

For the right thigh muscle and right hip, the Veteran contends that she has developed right thigh muscle atrophy with reduced size and right hip joint pain due to right knee surgery, use of a brace for the right knee, and her adjusted gait from her right knee.

The examiner should identify all current diagnoses of any left knee disorder, a lumbar spine disorder, a right thigh muscle disorder, and a right hip disorder that have been present during the pendency of the appeal.  

For each diagnosis identified, the examiner should state whether it is as at least as likely as not that the disorder is related to the Veteran's military service.  He or she should also indicate whether it is as at least as likely as not that the disorder was caused by or permanently aggravated by the Veteran's service-connected right knee disability.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Because it is important that each disability be viewed in relation to its history, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  The RO/AMC should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  

4.  After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs.

5.  When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence.  If the benefit sought is not granted, the appellant and her representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  No action is required of the Veteran until she is otherwise notified by the RO/AMC.  By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs