Citation Nr: 1323264 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 11-08 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a rating in excess of 30 percent for right knee disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who had active duty service from October 1988 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by severe instability, but does not render impractical the application of the regular schedular standards. 2. The Veteran's right knee disability is characterized by X-ray evidence of degenerative changes with limitation of flexion to no more than 85 degrees, limitation of extension to no more than 120 degrees, and objective evidence of pain, swelling, and locking episodes; ankylosis and nonunion of the tibia and fibula are not shown. CONCLUSIONS OF LAW 1. A rating in excess of 30 percent for instability is not warranted for the Veteran's service-connected right knee disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5257 (2012). 2. A separate 10 percent rating for degenerative arthritis of the Veteran's service-connected right knee disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.25, 4.40, 4.45, 4.59, 4.71a, Code 5003 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. 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). The appellant was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A December 2009 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The appellant has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in January 2010 and January 2011. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).] The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Factual Background The Veteran was initially granted service connection in February 1993 for a status post anterior cruciate ligament repair, right knee, and assigned a 10 percent rating under Code 5257. This rating was increased to 30 percent in October 1993 for severe instability of the knee. Following right knee surgery, the Veteran was granted an evaluation of 100 percent for the period January 8, 1997 to March 1, 1997. The 30 percent evaluation was reinstated effective March 1, 1997. The Veteran filed a claim for increase in November 2009. A February 2010 rating decision granted service connection for degenerative changes of the right knee, effective November 24, 2009, and included this disability in the 30 percent evaluation currently assigned for his service-connected right knee. The Veteran was afforded a VA examination in January 2010. The Veteran reported swelling, locking and pain (5/10) in his right knee, and his right knee giving out about 2 times a year. He stated that he does not have heat, redness, or rarely tenderness. The examiner noted instability, giving way, swelling after work, daily, and locking episodes approximately two times a week. Intermittent, occasional use of a brace and two crutches was noted. The Veteran's gait was normal. Right knee flexion was to 85 degrees and right knee extension was normal (0 degrees). There was no objective evidence of pain or additional limitations following repetitive motion. Joint ankylosis was not present. X-rays of the right knee revealed no fracture or dislocation, degenerative changes, and a 2 cm loose body probably in the suprapatellar bursa. VA treatment records show continued complaints of right knee pain and episodes of locking. July 2010 diagnostic imaging of the right knee revealed severe degenerative osteoarthritis, no acute fracture or dislocation, a previous anterior cruciate ligament reconstruction, and abnormal soft tissue calcifications lateral to the distal femoral metaphysis. A July 2010 treatment record noted the Veteran injured his knee stepping up into his truck. An August 2010 MRI of the right knee revealed severe osteoarthritic changes with narrowing of both knee compartments, severe tircomparmental chondrosis, large joint effusion with multiple calcified loose bodies, extensive degenerative tears of both the medial and lateral meniscus, a complete tear of the anterior cruciate ligament graft, and degenerative changes of the posterior cruciate ligament. In October 2010, the Veteran underwent an outpatient right knee arthroscopy with partial lateral meniscectomy and loose body removal. At a November 2010 follow-up appointment, the Veteran reported doing well with markedly decreased pain and resolution of his catching symptoms. He did note that his knee still occasionally locks up since surgery. An additional VA examination was performed in January 2011. Right knee stiffness was noted. Flexion and extension were to 120 degrees, and there was no additional functional impairment due to pain, stiffness, swelling, instability, locking, dislocation, subluxation, weakness, fatigability, incoordination, or flare-ups upon repetitive testing. Joint ankylosis was not present. Legal Criteria and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one will be assigned if the disability picture more nearly approximates the criteria required 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 portrays the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Recurrent subluxation or lateral instability of the knee is rated under 38 C.F.R. § 4.71a, Code 5257. These criteria provide for a 10 percent rating for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Code 5260 provides for limitation of flexion of the leg. Where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a, Code 5260. Code 5261 provides for limitation of the extension of the leg. When there is limitation of extension of the leg to 5 degrees, a 0 percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assignable; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. 38 C.F.R. § 4.71a, Code 5261. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Degenerative arthritis is rated under Code 5003. Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Code 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate 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 Code 5003. Id. Limitation of motion must be objectively confirmed by findings "such as swelling, muscle spasm, or satisfactory evidence of painful motion." Id. The use of the phrase "such as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each Veteran's disorder, and the effect of those symptoms on the claimant's social and industrial adaptability. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Pursuant to VAOPGPREC 9-98 (August 14, 1998), a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. In the absence of limitation of motion, a 10 percent rating is assigned where there is X-ray evidence of involvement of two or more major joints, or two or more minor joint groups; and a 20 percent evaluation is assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Code 5010. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Veteran's right knee disability has been rated 30 percent under Code 5257 (for severe recurrent subluxation or lateral instability). A 30 percent rating is the highest schedular rating available under this Code. The Board has also considered whether the Veteran is entitled to an extraschedular rating for his right knee instability. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Here, the rating criteria under Code 5257 reasonably describe the symptomatology complained of by the Veteran, in that the Veteran has complained of knee instability and this is provided for under this Code. Additionally, the January 2011 VA medical opinion found that the Veteran's service-connected conditions do not affect or impose work restrictions in all fields of labor that are sedentary/light/medium manual labor without prolonged standing or using stairs. Further, the opinion noted that the Veteran's education and skills allow him to be employable. Accordingly, referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board must now consider whether the Veteran's disability warrants a higher rating under other Codes governing knee disability ratings, or whether separate ratings are warranted under any other Codes. As an initial matter, higher ratings under Codes 5256 and 5262 are not warranted as there is no evidence of ankylosis or nonunion of the tibia and fibula. See 38 C.F.R. § 4.71a. Specifically, the January 2010 VA examination report noted no ankylosis and the January 2010 right knee X-ray imaging noted no fracture or dislocation. Now, the analysis must turn to whether the Veteran is entitled to separate ratings for his right knee disability. Separate ratings may be assigned for knee disability under Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. Separate ratings may also be assigned under DC 5260 and DC 5261 for disability of the same joint. See generally VAOPGCPREC 9-98 and VAOPGCREC 9-2004. The opinions of the VA's General Counsel appear to require persuasive evidence that a claimant actually suffers from the symptomatology set forth in the different rating codes before separate ratings may be assigned. A compensable rating for limitation of flexion of the leg is warranted when flexion is limited to 45 degrees (10 percent) and a compensable rating for limitation of extension of the leg is assigned when extension is limited to 10 degrees (10 percent). 38 C.F.R. § 4.71a, Codes 5260, 5261. Here, the Veteran's right knee disability is manifested by limitation of flexion to no more than 85 degrees and limitation of extension to no more than 120 degrees. Accordingly, range of motion is noncompensable under these Codes, so entitlement to a separate, compensable rating under either Diagnostic Code 5260 or 5261 is not warranted. Code 5003 provides that when the limitation of motion of the specific joint involved is noncompensable under the appropriate codes, a rating of 10 percent is for application for each such major joint affected by limitation of motion. See 38 C.F.R. § 4.71a, Code 5003. In light of the X-ray findings of degenerative arthritis of the right knee, and the objective findings that the knee is affected by limitation of motion in the form of pain, swelling, and locking episodes, the Board finds that a separate 10 percent disability rating is warranted under Code 5003. Turning to the meniscus, the Veteran is shown to have tears of both the medial and lateral meniscus and a tear of the anterior cruciate ligament graft, and in fact to have had a partial lateral meniscectomy (removal of meniscus). However, the record does not show dislocated semilunar cartilage, so 20 percent rating under Code 5258 is not warranted. A rating of 10 percent would be appropriate under Code 5259 for right knee symptomatic removal of semilunar cartilage, but his symptoms of pain, swelling, locking, and instability are already rated under two different Diagnostic Codes, 5257 and 5003. A separate evaluation under Code 5259 for the same symptoms would constitute pyramiding. The evaluation of the same manifestation under different diagnoses (a practice known as "pyramiding") is prohibited under the rating schedule. See 38 C.F.R. § 4.14. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's right knee is not warranted on the basis of functional loss due to pain or weakness. In this regard, the Board observes that the Veteran has complained of symptomatology such as pain, swelling, and episodes of locking. However, the effect of this symptomatology is already contemplated in the separate 10 percent evaluation. Specifically, the January 2010 VA examiner found no objective evidence of pain following repetitive motion and no additional limitations after three repetitions of range of motion, and the January 2011 VA examiner found "no additional functional impairment due to pain, stiffness, swelling, instability, locking, dislocation, subluxation, weakness, fatigability, incoordination or flare-ups upon repetitive testing done x three." Additionally, as the evidence in the record shows that the Veteran's symptoms have been essentially consistent through the appeal period, no staged ratings during this period are appropriate. See Hart, 21 Vet. App. at 505. The Board has also considered whether an extraschedular rating is warranted. An extraschedular rating under 5257 has previously been addressed. Here, the evidence shows that the Veteran is now being compensated with a separate 10 percent rating for objective findings that the knee is affected by limitation of motion in the form of pain, swelling, and locking episodes. The rating criteria (specifically the criteria under Code 5003) describe the Veteran's symptomatology in that they address his objective limitation of motion with findings such as pain, swelling, and locking. The Veteran is not complaining of anything else that is not being compensated. Accordingly, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Hence, referral for extraschedular consideration is not warranted. The issue of entitlement to total disability based upon individual unemployability (TDIU) has been raised in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As an initial matter, TDIU does not apply prior to July 2010 because the Veteran was working full-time as a woodworker. See January 2010 VA examination report. The Board notes that TDIU was denied in a January 2011 rating decision, which he did not appeal. In the event that there is anything in the record that implicitly raises an additional claim of TDIU, review of the overall evidence does not reflect that the Veteran's service-connected knee disability alone (or with consideration of his only other service-connected disability, a left knee scar, rated 0 percent) precludes employment. A VA medical opinion obtained in January 2011 found that the Veteran's service-connected disabilities do not affect or impose work restrictions in all fields of labor that are sedentary/light/medium manual labor. The examiner stated that the Veteran's education and skills allow him to be employable. Thus, entitlement to a TDIU due to his service-connected knee disability (and noncompensable scar disability) is not warranted. ORDER A separate 10 percent rating for degenerative arthritis of the right knee is warranted. A rating in excess of 30 percent for instability for right knee disability is denied. ____________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs