Citation Nr: 1322884 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-21 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left hip disorder. 2. Entitlement to an increased disability evaluation (rating) for postoperative anterior cruciate ligament reconstruction of the left knee, rated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from October 1986 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. The issue of service connection for a left hip disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the rating period, the Veteran's left knee disability is manifested by instability, and buckling and giving way on a daily basis and more closely approximates severe impairment of the knee with lateral instability. 2. Throughout the rating period, there is x-ray evidence of osteoarthritis of the left knee, and limitation of motion to a noncompensable degree with objective evidence of swelling, chronic effusion, and painful motion. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for a disability evaluation of 30 percent for postoperative anterior cruciate ligament reconstruction of the left knee have been approximated for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.27, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent evaluation for osteoarthritis of the left knee with painful motion, swelling, and chronic effusion have been approximated for the entire rating period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.71a, DC 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a November 2007 notice letter sent prior to the initial denial of the increased rating claim, the RO advised the Veteran that he may submit evidence showing that the service-connected left knee disability had increased in severity, and described the types of information and evidence that he should submit in support of the claim. The RO also explained what evidence VA was responsible for obtaining or would assist in obtaining on the Veteran's behalf in support of the increased rating claim. The RO further explained how VA determines the disability rating and the effective date. In consideration of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the RO afforded the Veteran with medical examinations in connection with the claim in December 2007 and November 2012. Collectively, the medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The medical examiners took a thorough history of the disabilities from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment. The medical examiners had adequate facts and data regarding the history and condition of the disability. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on his daily life and performed a thorough physical evaluation of the Veteran. There is no indication of a material change in the left knee condition since the November 2012 VA medical examination. Neither the Veteran nor the representative has submitted any statement indicating that the left knee condition has worsened. See, e.g., February 2013 Statement in lieu of VA Form 646. For these reasons, the Board finds that the collective medical examination reports are adequate for deciding the Veteran's increased rating claim, and there is no need for further medical examination. Also, post-service treatment records adequately identified as relevant to the appeal have been obtained and are associated with the record. Additional treatment records found in the Veteran's Virtual VA folder were considered by the RO in the first instance. The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Evaluation Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. 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. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. Where there is a question as to which of two evaluations shall be applied, 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability Rating Analysis The Veteran contends that he is entitled to a disability rating in excess of 20 percent for the service-connected left knee disability due to severe knee problems manifested by pain and swelling, limitation of flexion and extension of the left knee, instability and subluxation, and interference with the ability to work and perform daily activities. See the October 2007 statement, January 2009 statement, and June 2009 VA Form 9. The left knee disability is rated at 20 percent for the rating period under 38 C.F.R. § 4.71a, DC 5257 for other impairment of the knee manifested by recurrent subluxation or lateral instability. DC 5257 provides for a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the Veteran's left knee more closely approximates the criteria for the 30 percent rating under DC 5257. In this regard, the Board notes that the Veteran's current 20 percent rating under DC 5257 considers left knee impairment manifested by a moderate level of lateral instability or recurrent subluxation. Also, the Veteran typically demonstrated a stable knee at medical evaluations performed during the rating period, which suggests that the left knee disability is manifested by no more than a moderate level of impairment and is consistent with the schedular criteria for a 20 percent rating under 38 C.F.R. § 4.71a, DC 5257. See, e.g., November 2012 VA medical examination report. However, the Veteran has a history of instability of the left knee and, in a January 2009 statement, wrote that he wore a knee brace daily to help with instability and subluxation. See also November 2007 VA Form 21-4138 (wherein the Veteran reported that the anterior cruciate ligament had become lax). Also, in a September 2011 written statement and at the November 2012 VA medical examination, the Veteran reported buckling and giving way of the left knee on a daily basis. The Veteran is competent to report having left knee instability, and the Board finds the Veteran's account of left knee instability to be credible, particularly given the past history of instability, as well as the +1 anterior drawer test and +1 Lachman's test demonstrated in October 2007, and the positive McMurray's test demonstrated in June 2011, which were during the rating period. Additionally, in the January 2009 statement, the Veteran wrote that a VA doctor had labeled him with "severe knee pain/problems," and a June 2011 private magnetic resonance imaging (MRI) report includes an impression of "severe tear of the posterior horn of the medial meniscus." Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the disability picture more closely approximates severe impairment of the left knee manifested by instability of the left knee on a daily basis such that an increased rating of 30 percent under DC 5257 is warranted for the entire rating period. This is the maximum disability rating available under DC 5257; therefore, a rating in excess of 30 percent is not available under the diagnostic code. The Board additionally finds that the evidence is in equipoise on the question of whether a separate 10 percent rating is warranted under DC 5003 for degenerative arthritis based on x-ray evidence of osteoarthritis of the left knee and noncompensable limitation of left knee motion with objective evidence of swelling and/or effusion and painful motion. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (Aug. 14, 1998), published at 63 Fed. Reg. 56,704 (1998); 38 C.F.R. § 4.59. The June 2011 MRI report includes an impression of mild osteoarthritic changes of the left knee, and the November 2012 VA medical examiner checked "Yes" when asked if degenerative or traumatic arthritis had been documented by imaging studies; therefore, x-ray evidence of osteoarthritis is of record. Also, the Veteran's left knee has, at times, demonstrated limitation of motion on flexion to a noncompensable degree with objective evidence of painful motion, effusion, and/or swelling. For example, at the December 2007 VA medical examination, the Veteran flexed to 100 degrees (out of 140 degrees) with pain throughout the entire motion of the left knee. See 38 C.F.R. § 4.71a, DC 5260 for limitation of flexion (showing that flexion to limited to 60 degrees (or greater) is noncompensable). The December 2007 VA medical examiner noted that both medial and lateral joint lines were painful to palpation. Although there was no swelling demonstrated on physical examination of the knee during the December 2007 VA medical examination, the December 2007 VA medical examiner noted that an August 2007 MRI of the left knee showed small chronic joint effusion. Thus, at the December 2007 VA medical examination, the Veteran demonstrated left knee osteoarthritis manifested by limitation of left knee flexion to a noncompensable degree, objective evidence of pain, and chronic joint effusion. More recently, at the November 2012 VA medical examination, the Veteran was able to flex to 125 degrees (out of 140 degrees). While there was no objective evidence of painful motion during range of motion testing, to include on repetitive-use testing, there was tenderness or pain upon palpation of the joint line or soft tissue of the left knee with functional limitation manifested by less movement than normal; therefore, limitation of motion and objective evidence of pain are shown. The November 2012 VA medical examiner also checked "Yes" when asked if the Veteran's knee condition was manifested by frequent episodes of joint effusion. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the left knee disability is manifested by x-ray evidence of osteoarthritis, noncompensable limitation of left knee flexion, and objective evidence of painful motion and frequent effusion/swelling such that a separate rating of 10 percent under DC 5003 is warranted for the entire rating period. Thus, for reasons explained above, the Board finds that the Veteran is entitled to an increased evaluation of 30 percent under DC 5257 for severe impairment manifested by left knee instability for the entire rating period, as well as a separate 10 percent rating under DC 5003 for osteoarthritis of the left knee manifested by limitation of left knee flexion to a noncompensable level with objective evidence of painful motion and frequent swelling/effusion for the entire rating period. However, the Veteran is not entitled to an even higher disability rating or to other separate disability ratings under any other potentially applicable diagnostic code pertaining to the knee. There is no evidence of left knee ankylosis; therefore, an increased rating is not warranted under DC 5256 for knee ankylosis. Also, the Veteran has been able to extend fully (i.e., to 0 degrees) the left knee on medical examinations performed throughout the period. While the Veteran has asserted that he has limitation of left knee extension, he has not objectively demonstrated a limitation of extension on medical evaluations performed during the period. The rating criteria specifically contemplate the degree of limitation measured on examination. The Veteran has provided no evidence of limited left knee to the degree required for a compensable evaluation; therefore, a higher or separate rating is not warranted under DC 5261 for limitation of left leg extension. Additionally, the evidence does not show that the Veteran has impairment of the tibia and fibula manifested by nonunion with loose motion and requiring a brace. While the Veteran reported that he wore a knee brace, he stated that it was due to left knee instability. The symptomatology is already contemplated in the 30 percent schedular rating under DC 5257. 38 C.F.R. § 4.14 (2012) (avoidance of pyramiding). The Veteran is not shown to have nonunion of the tibia and fibula with loose motion; therefore, an increased evaluation under DC 5262 is not warranted. Although the Veteran has a meniscal tear and has a history of meniscectomy, the maximum rating under DC 5258 for semilunar dislocated cartilage with frequent episodes of locking, pain and effusion into the joint is 20 percent, and the maximum rating under DC 5259 for removal of symptomatic semilunar cartilage is 10 percent; therefore, a higher rating is not available under either diagnostic code. Similarly, the maximum rating under DC 5263 for genu recurvatum is 10 percent; therefore, an increased rating is not available under that diagnostic code. Furthermore, there are no compensable residuals shown with respect to the Veteran's well-healed left knee surgical scars. See, e.g., December 2007 and November 2012 VA medical examination reports; see also 38 C.F.R. § 4.118, 7800-7805 (in effect prior to October 23, 2008 and after October 23, 2008). The Board has further considered whether the increased rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the current schedular ratings. The Veteran's left knee disability is manifested by severe impairment of the left knee with daily instability to include buckling and giving way; and osteoarthritis with limitation of left knee flexion, painful motion, chronic left knee joint effusion, and left knee swelling. These symptoms were considered by the Board when resolving doubt in the Veteran's favor and granting the current 30 percent rating under DC 5257 and the separate 10 percent rating for osteoarthritis of the left knee. Thus, while the Veteran reported left knee swelling and pain at the end of the workday during the November 2012 VA medical examination, the symptomatology is already contemplated in the current 10 percent schedular rating under DC 5003 for osteoarthritis of the left knee. In consideration of the foregoing, the Board finds, after comparing the functional impairment and symptoms manifested by the Veteran to the schedular criteria for the current ratings, that the Veteran's left knee symptoms and related functional impairment are fully contemplated in the currently assigned schedular ratings; therefore, no extraschedular referral is warranted in this case. The Board has further found that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has not been reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is shown to have been employed by the postal service throughout the rating period. See, e.g., November 2012 VA medical examination report. The Veteran has not alleged and the record does not indicate that the Veteran is rendered unemployable due to the left knee disability. Therefore, a TDIU is not reasonably raised by the record, and is not part of the rating appeal. (CONTINUED ON NEXT PAGE) ORDER An evaluation of 30 percent for postoperative anterior cruciate ligament reconstruction of the left knee is granted, subject to the laws and regulations governing the payment of monetary awards. A separate 10 percent rating for osteoarthritis with painful motion, chronic effusion, and swelling is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND The Veteran asserts that he currently suffers from a left hip disorder due to an altered gait caused by the left knee disability. See April 2008 notice of disagreement. The Veteran has also asserted that he fell as a result of the left knee giving out and injured the left hip. See June 2009 VA Form 9. The Veteran is competent to report having fallen and injured the left hip due to the left knee giving way. Also, the Board observes that a June 2007 VA treatment record includes an assessment of chronic left hip pain. The Veteran has not yet been provided with a VA medical examination for the left hip disorder to determine whether the Veteran's complaints of pain may be attributed to an underlying disability and, if so, whether the left hip disability was caused or aggravated by the service-connected left knee disability. For these reasons, the Board finds that a remand in order to provide the Veteran with a medical examination is warranted. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for appropriate medical examination for his claimed left hip disorder. All relevant documents, to include records on the Virtual VA system, should be made available to and reviewed by the examiner in rendering the opinion. The examiner must confirm that the record was reviewed in the examination report. a) Based on review of the appropriate records, the examiner should state, for each diagnosis, whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any current left hip disorder was caused by the Veteran's service-connected left knee disability. b) Based on review of the appropriate records, the examiner should state, for each diagnosis, whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any current left hip disorder was aggravated (i.e., permanently worsened beyond the normal progression of the condition) by the Veteran's service-connected left knee disability. If aggravation is found, the examiner should attempt to identify the baseline level of severity of the left hip disorder before the onset of such aggravation, and the degree to which the aggravation has worsened the left knee disorder. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to speculation, the examiner should so state, and explain why that is so. 2. After any additional notification and/or development deemed necessary is undertaken, readjudicate the remanded claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case with an appropriate period of time for response by the Veteran and the representative and, thereafter, return the case to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs