Citation Nr: 1320622 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 08-02 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the right knee (previously evaluated as post operative internal derangement). 2. Entitlement to a rating in excess 10 percent for limitation of motion of the right knee. 3. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. 4. Entitlement to a compensable initial rating for limitation of motion of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from February 1974 to January 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in pertinent part, continued the current ratings for the right and left knee disabilities. On the January 2008 substantive appeal, the Veteran requested a hearing at the Board's Central Office in Washington, D.C. Two years later, in January 2010, the Veteran withdrew his request for a hearing before the Board and requested that his claim be decided based on the record. The Board will therefore proceed with a decision in this case. In September 2011, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the right knee manifests limitation of flexion to 90 degrees, limitation of extension to 20 degrees, and recurrent subluxation that is no more than moderate. There is no ankylosis, impairment of the tibia or fibula, or frequent episodes of locking, dislocation, and joint pain. 2. The Veteran's degenerative joint disease of the left knee manifests limitation of flexion to 110 degrees and limitation of extension to 5 degrees. There is no subluxation, instability, ankylosis, impairment of the tibia or fibula, or frequent episodes of locking, dislocation, and joint pain. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 20 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5262 (2012). 2. The schedular criteria for a rating in excess of 10 percent for limitation of flexion of the right knee have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 3. The schedular criteria for a separate 30 percent evaluation, but not higher, for limitation of extension of the right knee have been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5261. 4. The schedular criteria for a rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5257, 5258, 5259, 5262. 5. The schedular criteria for an initial compensable rating for limitation of motion of the left knee have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Service connection for internal derangement of the right knee was granted in a June 1976 rating decision with an initial 20 percent evaluation assigned effective January 16, 1976. The disability was recharacterized as right knee arthritis in the July 2007 rating decision on appeal. A separate 10 percent evaluation for limitation of motion of the right knee was granted in an August 2006 rating decision effective March 10, 2006. The left knee is also in receipt of two ratings; service connection for degenerative joint disease of the left knee was granted in a November 2003 rating decision with an initial 10 percent evaluation assigned effective August 7, 2003. A separate noncompensable evaluation for limitation of motion of the left knee was granted in an August 2012 rating decision effective January 10, 2007. The July 2007 rating decision on appeal continued the ratings for the Veteran's right and left knee disabilities. The Veteran contends that increased ratings are warranted as his knees are productive of constant pain and functional impairment that limit his ability to stand and walk. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will first address the impairment associated with the Veteran's right knee disability. As noted above, the Veteran is in receipt of two separate disability ratings for the right knee. First, his degenerative arthritis of the right knee is rated as 20 percent disabling under Diagnostic 5257. This diagnostic code, which pertains to recurrent subluxation or lateral instability, provides for a 20 percent rating for moderate instability and a maximum 30 percent rating for severe instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). Review of the evidence does not establish subluxation or instability of the right knee that most nearly approximates severe. The Veteran has complained of occasional popping and giving way of his right knee throughout the claims period, and there is some medical evidence in support of a finding of instability. Upon VA examination in June 2006, a VA contract examiner specifically found that the right knee manifested moderate recurrent subluxation and tested moderately abnormal during meniscus stability testing. However, the right knee was stable during the July 2007 and October 2011 VA examinations. There is also no evidence of right knee instability noted in the Veteran's records of treatment from the Oklahoma City VA Medical Center (VAMC). Thus, the competent medical and lay evidence of record establishes that the right knee disability manifests recurrent subluxation that is no more than moderate and an increased rating is not warranted under Diagnostic Code 5257. The Veteran's right knee disability is characterized as degenerative arthritis and Diagnostic Code 5003 is for consideration. 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. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). Diagnostic Code 5003 provides for a 10 percent evaluation when limitation of motion is noncompensable for a major joint or group of minor joints. As discussed below, the Veteran is currently in receipt of a compensable rating for limitation of motion of the right knee. Thus, a separate or increased rating is not warranted under Diagnostic Code 5003 at anytime during the claims period for the right knee disability based on noncompensable limited motion. The Veteran is also in receipt of a 10 percent evaluation for limitation of motion of the right knee under Diagnostic Code 5260, pertaining to limitation of flexion. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees, a 20 percent evaluation when it is limited to 15 degrees, and a 30 percent evaluation when it is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Veteran's most severe limitation of right knee motion was demonstrated at the June 2006 VA contract examination, when extension was limited to 20 degrees and flexion was limited to 90 degrees with pain at the endpoints of testing. With repetitive testing, the Veteran experienced pain, fatigue, weakness, and lack of endurance. The examiner found that estimating any additional loss of motion during a flare-up of symptoms would require speculation. Extension limited to 20 degrees is contemplated by a 30 percent evaluation under Diagnostic Code 5261 while flexion limited to 90 degrees is noncompensable under Diagnostic Code 5260. Even with consideration of functional factors, the Veteran has not manifested limitation of right knee flexion of sufficient severity to warrant an increased rating under Diagnostic Code 5260. However, VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Thus, the Board finds that a separate disability rating of 30 percent is warranted for the Veteran's limitation of extension of the right knee. A rating in excess of 30 percent is clearly not appropriate as there is no evidence of left knee extension limited to greater than 20 degrees. The range of motion results reported by the June 2006 VA contract examiner included the Veteran's complaints of pain and various other disability manifestations such as weakness and fatigue during repetitive testing. Thus, even with consideration of functional factors, the left knee has manifested extension limited to no more than 20 degrees. The Board therefore concludes that a separate 30 percent rating is warranted for the right knee disability based on limitation of extension. The Board will not disturb the current 10 percent evaluation for limitation of flexion under Diagnostic Code 5260. In sum, the Veteran's right knee disability is appropriately rated as 20 percent disabling for moderate subluxation under Diagnostic Code 5257, 10 percent disabling for limitation of flexion under Diagnostic Code 5260, and 30 percent disabling for limitation of extension under Diagnostic Code 5261. A separate or increased rating is not appropriate under Diagnostic Code 5003 for degenerative arthritis. The Board notes that the assignment of separate ratings for subluxation and limitation of motion of the knee does not violate VA's rule against pyramiding detailed in 38 C.F.R. § 4.14 as the symptomatology contemplated is separate and distinct. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has also considered whether there is any other schedular basis for granting a higher or separate rating, but has found none. The Veteran has not demonstrated knee ankylosis or impairment of the tibia and fibula and Diagnostic Codes 5256 and 5262 are not for application. There is also no evidence that the Veteran has undergone surgery to remove the semilunar cartilage of either knee and a 10 percent rating under Diagnostic Code 5259 is also not appropriate. Finally, while the Veteran has reported some locking of the right knee, the competent medical evidence is wholly negative for frequent episodes of locking, dislocation, or effusion. Thus, a rating under Diagnostic Code 5258 is not appropriate. Turning to the left knee disability, the Veteran is currently in receipt of a 10 percent evaluation for degenerative joint disease under Diagnostic Code 5010 for traumatic arthritis and a noncompensable evaluation for limitation of flexion under Diagnostic Code 5260. Traumatic arthritis is rated as degenerative arthritis under Diagnostic Code 5003. As noted above, Diagnostic Code 5003 provides for a 10 percent evaluation when limitation of motion is noncompensable for a major joint or group of minor joints. 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. In this case, the Veteran's left knee has not demonstrated compensable limitation of motion. Flexion of the left knee was most restricted during December 2008 and February 2009 orthopedic surgery consultations at the Oklahoma City VAMC when it measured to 110 degrees. Extension was most limited at the October 2011 VA examination when the left knee manifested extension to 5 degrees. The October 2011 VA examiner noted that pain occurred at the endpoint of testing and there was no additional loss of motion with repetitive testing. Therefore, even with consideration of functional factors, it is clear that extension of the left knee has not been restricted to more than 5 degrees. This finding is contemplated by a noncompensable evaluation under Diagnostic Code 5261. Similarly, flexion limited to 110 degrees is noncompensable under Diagnostic Code 5260. Although the VA orthopedists at the VAMC did not address where pain began during range of motion testing, the Board notes that the left knee has not demonstrated flexion less than 110 degrees at anytime during the claims period, to include upon VA examinations conducted in June 2006, July 2007, and October 2011. The VA examiners recorded the onset of pain during range of motion testing and measured limitation of motion with repetitive movement. Therefore, even with consideration of functional factors, it is clear that the Veteran's left knee has not manifested limitation of motion that is compensable under Diagnostic Code 5260 or 5261. As the Veteran experiences painful noncompensable motion with arthritis, the current 10 percent evaluation under Diagnostic Code 5003/5010 is the appropriate rating for his disability. While this diagnostic code also provides a maximum 20 percent evaluation with X-ray evidence of involvement of 2 or more major or minor joints and occasional incapacitating episodes, the Veteran's service-connected disability clearly affects only one major joint: the left knee. Thus, an increased rating is not warranted under Diagnostic Code 5003 at anytime during the claims period. The Board has also considered whether a separate or increased rating is warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability of the left knee. The Veteran has complained of giving way and popping associated with his right knee condition, but has not made comparable complaints regarding the left knee. During the July 2007 and October 2011 VA examinations, he denied experiencing instability of the left knee, and similar reports were made to a VAMC provider during an orthopedic surgery consultation in February 2009. There is also no medical evidence of subluxation or instability of the left knee at anytime during the claims period. The left knee was consistently stable to testing during all three VA examinations and no findings of instability were made by his treating physicians at the VA. Therefore, a separate or increased evaluation is not warranted under Diagnostic Code 5257. The Board has also considered whether additional ratings are warranted under the other criteria for evaluating the knee. The Veteran's left knee has clearly not demonstrated any ankylosis or impairment of the tibia or fibula, and there is no indication that there has been any removal of semilunar cartilage. Thus, Diagnostic Codes 5256, 5259, and 5262 are not for application. In addition, the competent medical evidence of record does not demonstrate frequent episodes of locking, pain, and effusion into the joint. A separate or increased rating is also not warranted under Diagnostic 5258. The Veteran's left knee disability is therefore properly compensated by the current 10 percent evaluation under Diagnostic Code 5010 for traumatic arthritis and a noncompensable evaluation for limitation of motion under Diagnostic Code 5260. The Board has considered whether there is any other schedular basis for granting a higher rating for either knee disability, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to because the preponderance of the evidence is against the claim for an increased rating other than that granted above. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's bilateral knee disabilities are manifested by symptoms such as painful limited motion and with respect to the right knee, moderate subluxation. These manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. Entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The Veteran was denied entitlement to TDIU in an October 2009 rating decision. Since that time, he has not contended that he is unemployable due to the service-connected bilateral knee disabilities. He is not in receipt of Social Security disability benefits, and while the record shows that he has not worked since 2003, statements from the Veteran indicate that he believes his nonservice-connected stroke is the cause of his inability to work. Therefore, remand of a claim for TDIU is not necessary as there is no evidence of unemployability due to the service-connected knee disabilities. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a February 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the February 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment. The Veteran has not identified any private physicians or facilities that have treated his service-connected bilateral knee disabilities. Additionally, the Veteran was provided proper VA examinations to determine the severity of his knee conditions in June 2006, July 2007, and October 2011. The Board also finds that VA has complied with the September 2011 remand orders of the Board. In response to the Board's remand, VA obtained additional records of treatment from the Oklahoma City VAMC. A VA examination to determine the current severity of the Veteran's service-connected knee disabilities was also provided in October 2011. The case was then readjudicated in an August 2012 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 20 percent for degenerative arthritis of the right knee is denied. Entitlement to a rating in excess 10 percent for limitation of flexion of the right knee is denied. Entitlement to a separate rating of 30 percent, but not higher, for limitation of extension of the right knee is granted. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to an initial compensable rating for limitation of motion of the left knee is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs