Citation Nr: 1325643 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 07-13 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of right tibia fracture (right knee disability). 2. Entitlement to a rating in excess of 10 percent for ligamentous instability of the right ankle. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to August 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) from an August 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. This case was most recently before the Board in March 2013, when the claims were once again remanded to obtain Social Security Administration disability records and to obtain private treatment records. The RO issued a supplemental statement of the case in June 2013 and the appeal is once again before the Board. FINDINGS OF FACT 1. For the entire increased rating period, the Veteran's service-connected right knee disability has been manifested by moderate recurrent patellar subluxation and moderate lateral instability. 2. For the entire increased rating period, the Veteran's service-connected right knee disability has been manifested by a semilunar cartilage condition with frequent episodes of locking, pain, and effusion. 3. For the entire increased rating period, the Veteran's right ankle disability has been primarily manifested by moderate pain, laxity, and instability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, for the entire increased rating period, the criteria for a higher 20 percent rating for right knee recurrent subluxation and instability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257 (2012). 2. For the entire increased rating period, the criteria for a separate 20 percent disability rating for a right knee semilunar cartilage condition with frequent episodes of locking, pain, and effusion are met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.59, 4.71a, DC 5258 (2012). 3. For the entire increased rating period, the criteria for a rating in excess of 10 percent for right ligamentous instability of the right ankle have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5270-5274, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran letters in March 2006 and May 2006 that informed him of the requirements needed to establish increased ratings for right ankle and right tibia disabilities. The notice letters advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claims. 38 U.S.C.A. § 5103A. VA has obtained VA and private treatment records and other records identified by the Veteran, including Social Security Administration (SSA) records. Pursuant to the Board's March 2013 remand, the Veteran was sent a letter in March 2013 requesting that he complete and submit releases in order to obtain any outstanding records from Dr. Lo. To date, however, the Veteran has not responded. The Veteran has also been afforded VA examinations on the issues pertaining to increased ratings for service-connected right ankle and right tibia disabilities. VA most recently provided the Veteran with an examination in April 2012. Treatment records were reviewed, the Veteran's history was taken, and complete examinations with clinical measures were conducted, to include obtaining X-rays. Conclusions reached and diagnoses given were consistent with the examination report, including notation of whether there were additional losses of ranges of motion due to factors such painful motion, weakness, impaired endurance, incoordination, or instability. For these reasons, the Board finds that the Veteran has been afforded adequate examinations on the issues of increased ratings for service-connected right ankle and right tibia disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, neither the Veteran nor his representative have voiced any challenge to the adequacy of the Veteran's VA examinations. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by DCs. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. As the instant claims for increase were received in March 2006, the period for consideration is from March 2005 until the present. The Court has emphasized that when assigning a disability rating it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disability should reflect functional limitation due to pain which is supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40. The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Words such as "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. 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. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, 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. Knee Rating Criteria With respect to residuals of a right tibia fracture, 38 C.F.R. § 4.71a, DCs 5256 through 5262, set forth relevant provisions. Specifically, DC 5256, which governs ankylosis of the knee, provides a 30 percent rating for knee ankylosis in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. DC 5257 governs other impairment of the knee. It assigns respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. DC 5258 provides a maximum 20 percent rating for dislocated semilunar knee cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. DCs 5260 and 5261 set forth rating schedules for limitation of motion of the leg. 38 C.F.R. § 4.71a, DCs 5260, 5261. With respect to limitation of leg flexion, DC 5260 provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum of 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. DC 5261, which governs limitation of leg extension, provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum of 50 percent for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Under DC 5262, impairment of the tibia and fibula characterized by malunion with moderate knee or ankle disability warrants a 20 percent evaluation, while malunion with marked knee or ankle disability warrants a 30 percent rating. Impairment of the tibia and fibula manifested by nonunion with loose motion, requiring a brace, warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a. DC 5003 is for arthritis due to trauma, substantiated by X-ray findings and provides for rating as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5003. DC 5003 provides that degenerative arthritis 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 (DC 5200, etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. Increased Rating for Right Knee Disability (Residuals of Tibia Fracture) The Veteran's residuals of right tibia fracture are rated as 10 percent disabling, by analogy, to DC 5257 (recurrent subluxation or lateral instability). The Board will consider all relevant provisions associated with the right knee and tibia; specifically, DCs 5256 through 5262. After a review of all the evidence in the Veteran's case, lay and medical, the Board finds that a higher 20 percent evaluation for moderate right knee recurrent patellar subluxation and moderate lateral instability is warranted for the entire increased rating period under DC 5257. The Board further finds that a separate 20 percent rating is warranted for semilunar cartilage condition with frequent episodes of locking, pain, and effusion under DC 5258. The Veteran was afforded VA examinations in May 2006, July 2010, October 2011, and April 2012. The Board finds that these VA examinations demonstrate that the Veteran experiences moderate recurrent patellar subluxation and moderate lateral instability. Specifically, in the May 2006 VA examination report, the examiner found "severe" anterior instability of the right knee and "moderate" medial instability of the right knee. Similarly, in the most recent April 2012 VA examination, right knee medial-lateral instability was found to be 5-10 millimeters. Further, the April 2012 VA examiner found evidence of "moderate" patellar recurrent subluxation. The Board notes that the July 2010 and October 2011 VA examination reports did not specifically test for right knee instability. For these reasons, the Board finds that the VA examinations demonstrate patellar recurrent subluxation and lateral instability to a moderate degree. Therefore, a higher 20 percent evaluation, but no higher, is warranted under DC 5257. The Board next finds that a higher or separate rating under DC 5256 is not warranted, as the Veteran does not, nor has he ever demonstrated ankylosis of his right knee. Similarly, as the evidence fails to show genu recurvatum, DC 5263 is inapplicable. Moreover, although the Veteran is service-connected for residuals of a tibia fracture, there is no evidence of any impairment of the Veteran's tibia, thus DC 5262 is not for application in this case. Specifically, in the April 2012 VA examination report, the examiner noted that the Veteran underwent surgery to his right tibia in 1965; however, no residual signs or symptoms due to the right tibia surgery were noted. That notwithstanding, the Board finds that a separate 20 percent disability rating under DC 5258 (dislocated semilunar cartilage) is warranted. In the April 2012 VA examination, the examiner found that the Veteran had a semilunar cartilage condition with frequent episodes of locking, pain, and effusion. The Board notes that a 20 percent disability rating is the maximum rating allowed Under DC 5258. As such, although the Board is granting a separate 20 percent rating under DC 5258, a higher rating under this DC is not possible. The Board acknowledges that the Veteran has also been diagnosed with osteoarthritis of the right knee in the May 2006, July 2010, and April 2012 VA examinations. As noted above, DC 5003 provides that when limitation of motion of the joint involved is noncompensable under the applicable diagnostic codes, a rating of 10 percent is to be assigned for each major joint. The Board finds, however, that a separate rating under DC 5003 for degenerative arthritis with painful limitation of motion is not warranted. The VA General Counsel has held that a rating under DC 5259, Cartilage, Semilunar, Removal (see also DC 5258, dislocated semilunar cartilage) already contemplate limitation of motion, such that separate ratings for limitation of motion would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998). For these reasons, the Board finds that a separate or higher rating under DC 5003 (limitation of motion due to arthritis), 5260 (limitation of flexion), or 5261 (limitation of extension) are not warranted. Further, as noted in the May 2006, July 2010, October 2011, and April 2012 VA examination reports, there was no objective evidence of additional limitation of motion due to pain. DeLuca, supra; 38 C.F.R. §§ 4.45 , 4.59. Accordingly, and upon review of all the evidence of record, including VA treatment records, SSA disability records, and the Veteran's statements, the Board finds that the Veteran's symptoms relating to his right knee disability have remained consistent throughout the appeal period. As such, for the reasons discussed above, the Board finds that a higher 20 percent evaluation for moderate right knee recurrent patellar subluxation and moderate lateral instability is warranted for the entire increased rating period under DC 5257. Further, a separate 20 percent rating for semilunar cartilage condition with frequent episodes of locking, pain, and effusion under DC 5258 is also warranted for the entire increased rating period. Increased Rating for Right Ankle Disability The Veteran's right ankle disability is rated under DC 5284, for other foot injuries. Specifically, the Veteran's disability relates to laxity and pain associated with ligamentous instability of the right ankle. In considering other applicable DCs, the Board finds that this is the most appropriate. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of DC should be upheld if it is supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). That notwithstanding, the Board will also consider other possible DCs relating to the ankle. See DCs 5270-5274. Normal ranges of motion of the ankle are dorsiflexion from 0 degrees to 20 degrees, and plantar flexion from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5284, a 10 percent rating is assigned for moderate foot residuals. A 20 percent rating requires moderately severe residuals. A 30 percent rating requires severe residuals. 38 C.F.R. § 4.71a, DC 5284. During the May 2006 VA examination, the Veteran reported pain and instability associated with the right ankle. Upon physical examination, the right ankle reflected "mild" positive drawer sign anterior instability and "mild" positive talar sign medial instability. Range of motion testing measured passive and active against resistance from 0 to 50 degrees. In a subsequent July 2010 VA examination report, x-rays showed that the right ankle was normal. During the evaluation, the Veteran complained of right ankle pain and noted that he takes pain medication with good response. Upon physical examination, the July 2010 VA examiner noted dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees, with no evidence of pain on motion. There was also no evidence of pain following repetitive motion and no additional limitations after three repetitions. In the most recent April 2012 VA examination, the Veteran reported pain and decreased range of motion. Upon physical examination, however, the VA examiner found no limitation of motion; specifically, plantar flexion was to 45 degrees and dorsiflexion was to 20 degrees. Upon review of x-ray findings, the April 2012 VA examiner noted right ankle degenerative arthritis. After a review of all the evidence of record, the Board finds that the evidence does demonstrates that the Veteran's ligamentous instability of the right ankle is of "moderate" severity as contemplated by a 10 percent rating under DC 5284. The May 2006 examiner noted "mild" positive drawer sign anterior instability and "mild" positive talar sign medial instability. Further, all of the VA examination reports reveal normal range of motion and no pain following repetitive motion and no additional limitations after repetition. The Veteran's symptoms of pain and instability have remained consistent throughout the appeal period. As such, the Board finds that the weight of the evidence of record does not more nearly approximate a moderately severe foot injury under DC 5284. The Board has also considered other DCs to determine whether a higher or separate rating in excess of 10 percent is warranted for the Veteran's ligamentous instability of the right ankle. For example, although the Veteran was diagnosed with right ankle degenerative arthritis in the April 2012 VA examination report, the Board finds that a higher rating is not warranted under DC 5003. As the Veteran is already in receipt of a compensable 10 percent rating, without a showing of greater objective limitations of the ankle, there is no basis for assigning a rating in excess of 10 percent under this DC. In this regard, a higher or separate rating under DC 5271 (limitation of motion) is not warranted. Range of motion testing of the Veteran's right ankle has consistently been within normal limits. Specifically, range of motion testing measured passive and active against resistance from 0 to 50 degrees in the May 2006 VA examination report. The July 2010 VA examiner noted dorsiflexion from 0 to 20 degrees and plantar flexion from 0 to 45 degrees. Finally, the April 2012 VA examination report showed 45 degrees of plantar flexion and 20 degrees of dorsiflexion. For these reasons, the Board finds that a higher or separate rating under DC 5271 is not warranted. Moreover, as the Veteran's right ankle disability is predicated on instability, rather than limitation of motion, an analysis under DeLuca does not apply. Further, the Board has considered whether any other diagnostic codes pertaining to the Veteran's right ankle are applicable in this case. The Veteran's service-connected disability does not warrant a separate or higher rating under DCs 5270 or 5272 because he has never demonstrated or been diagnosed with ankylosis of the right ankle. He has also never been diagnosed with malunion of the os calcis or astragalus or ever underwent astragalectomy, thus, DCs 5273 and 5274 are not for application in this case. See 38 C.F.R. § 4.71a, DCs 5270, 5272, 5273, 5274. Upon review of all the evidence of record, including VA treatment records, SSA disability records, and the Veteran's statements, the Board finds by a preponderance of the evidence that the Veteran's ligamentous instability of the right ankle does not meet, or more nearly approximate, the criteria for a rating in excess of 10 percent for any time during the appeal period, under DC 5284 or any of the other applicable DCs. As the preponderance of the evidence is against the claim for an increased rating, reasonable doubt may not be resolved in the Veteran's favor. Extraschedular Consideration The Board has considered whether referral for extraschedular evaluations are warranted for the Veteran's right knee and right ankle disabilities. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disabilities with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Veteran's right ankle and disability has been manifested by degenerative changes, pain, and instability. As for the right knee disability, the Veteran's symptoms include frequent episodes of locking, pain, and effusion, and some limitation of motion, including due to pain and recurrent patellar subluxation. The schedular rating criteria specifically contemplate ratings based on these symptoms. In this case, comparing the Veteran's disability level and symptomatology of the right knee and right ankle to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with the Veteran's right ankle and right knee disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating of 20 percent, but no higher, for moderate recurrent right knee patellar subluxation and lateral instability is granted. A separate disability rating of 20 percent for dislocated semilunar cartilage of the right knee is granted. A rating in excess of 10 percent for ligamentous instability of the right ankle is denied. ____________________________________________ T. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs