Citation Nr: 1328700 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-09 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for the service-connected left knee disability prior to March 27, 2006, and entitlement to a disability rating in excess of 30 percent after May 1, 2007. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active military duty from July 1965 to June 1969 and from February 1971 to January 1983. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2006 rating decision. In that decision, the RO denied, inter alia, entitlement to a compensable rating for the service-connected left knee disability, and denied service connection for a right knee condition. During the pendency of the appeal, the RO issued a November 2006 rating decision which granted a 10 percent rating for the service-connected left knee disability from the date of the Veteran's claim, and assigned 100 percent temporary convalescent rating from March 27, 2006 until April 30, 2007, and then assigned a 30 percent rating effective thereafter. In a November 2009 rating decision, the RO assigned a temporary convalescent rating from February 23, 2009 until April 1, 2010, and then assigned a 30 percent rating thereafter. As the disability ratings subsequently assigned (other than the 100 percent convalescence ratings) do not constitute a complete grant of benefits, the issue of an increased rating remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Moreover, the Board must consider whether there are distinct time periods during the entire appeal period where the Veteran's symptoms warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The applicability of Rice v. Shinseki, 22 Vet. App. 447 (2009) has been considered; and, while the record shows the Veteran is currently unemployed, his unemployment is due to retirement for age and he has not alleged his unemployment is due to his left knee disability. Therefore, there is no implied claim for entitlement to a total disability rating based on unemployability. FINDINGS OF FACT 1. Prior to March 27, 2006, residuals, left knee injury with chondromalacia patella and arthritis, status post patellofemoral joint replacement were manifested by painful motion and functional flexion to 140 degrees or greater, with no ankylosis, no recurrent subluxation or lateral instability, and no impairment of tibia and fibula. 2. From May 1, 2007, residuals, left knee injury with chondromalacia patella and arthritis, status post patellofemoral joint replacement have been manifested by intermediate degrees of weakness with no ankylosis, no limitation of extension, and no impairment of the tibia and fibula. CONCLUSIONS OF LAW 1. Prior to March 27, 2006, the criteria for a disability rating in excess of 10 percent for residuals, left knee injury with chondromalacia patella and arthritis, status post patellofemoral joint replacement of the left knee have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2012). 2. From May 1, 2007, the criteria for a disability rating in excess of 30 percent for residuals, left knee injury with chondromalacia patella and arthritis, status post patellofemoral joint replacement have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5256, 5261, 5262 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012) and 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, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1) , proper notice 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the appellant a pre-rating notice by letter dated October 2005. The notice letter complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim of service connection and the relative duties of VA and the claimant to obtain evidence. The October 2005 notice did not provide the Veteran with notice of all five elements of a service connection claim, including the assignment of disability ratings and effective dates for all service-connected disabilities. However, that defect was cured in a subsequent letter sent to the appellant in March 2006. Moreover, an additional duty-to-notify letter was sent to the appellant in August 2011. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran a physical examinations, and has obtained medical opinions. The Veteran was afforded an opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service treatment records. In this regard, the Veteran's file was apparently lost during the course of the appeal. The file has been reconstructed to include, as best as possible, all of the previously included records. VA outpatient treatment records for the entire appeal period and all of the VA examinations have been uploaded to the Veteran's Virtual VA file. To the Board's knowledge, there are no outstanding relevant records. The Veteran was afforded five VA examinations that addressed his left knee disability during the appeal period, in November 2005, September 2006, June 2010, September 2011, and March 2012. For the reasons stated below, the Board finds that those VA examinations were adequate, because they were based on consideration of the Veteran's prior medical history and also described his left knee disability in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria and Analysis The Veteran seeks an increased disability rating for his service connected left knee disability. The Veteran's left knee disability is rated as 10 percent disabling from September 2005, 100 percent disabling from March 27, 2006, 30 percent disabling from May 1, 2007, 100 percent disabling from February 23, 2009, and 30 percent disabling from April 1, 2010, under 38 C.F.R. § 4.71a, Diagnostic Code 5257-5055 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen; unlisted disabilities requiring rating by analogy will be coded utilizing the numbers of the most closely related body part and "99"). The 100 percent disability ratings were awarded for temporary convalescence. Because the 100 percent ratings represent the highest schedular rating possible, those time periods for which the 100 percent disability rating was in effect will be excluded from the analysis below. The Board will consider whether the Veteran is entitled to a disability rating in excess of 10 percent prior to March 2006, and a disability rating in excess of 30 percent from May 1, 2007 to February 22, 2009 and from April 2010. Disability ratings are determined by applying the criteria set forth in the 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 evaluation 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, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "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). In this case, because of the nature of the Veteran's left knee disability which necessitated surgical procedure, the RO assigned separate disability evaluations for separate periods of time. 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). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). A. Prior to March 27, 2006 Prior to March 27, 2006, the date of his first left knee replacement surgery, the Veteran's left knee disability was rated as 10 percent disabling for pain with x-ray findings of arthritis and no limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, is applicable to degenerative arthritis. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a 10 percent rating is warranted for objectively confirmed limitation of motion. See 38 C.F.R. § 4.59 (recognizing painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). Limitation of motion of the knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion of the leg is limited to 45 degrees and a 20 percent rating is warranted where flexion is limited to 30 degrees. Where flexion is limited to 15 degrees, a 30 percent rating is warranted. Under Diagnostic Code 5261, extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. At a November 2005 VA examination, the Veteran denied wearing a knee brace, and denied having any locking, subluxation or instability. He had no deformity, no swelling, no heat or inflammation. He complained of occasional stiffness. He denied weakness or lack of endurance. He had no functional limitation on walking and standing. He reported his left knee mildly interferes with his usual daily activities and his usual occupation. He has no lost days of incapacitation. Usually, he has moderate pain on the left knee and it was usually aggravated by prolonged standing, but relieved with rest. The Veteran denied locking and subluxation; and, he denied instability of the left knee. Physical examination revealed range of motion of flexion from 0-140 degrees, extension from -10 to 0 degrees without pain and without limitation of motion from pain, fatigue, weakness or lack of endurance during the repetitive use. Deep tendon reflexes, patellar reflex were 2+ bilaterally. McMurray, Lachman and anterior drawer sign were negative. The examiner estimated he had no additional limitation of motion during flare-ups and no additional limitation of motion during repetitive use of the knee from pain, fatigue, weakness, or lack of endurance. X-rays showed minor osteoarthritic changes present. The diagnosis on examination was minor osteoarthritis of both knees due to aging. As noted, for the period prior to March 27, 2006, the Veteran has been assigned a 10 percent disability rating. To warrant the next higher rating of 20 percent, the evidence must show the functional equivalent of limitation of motion of flexion to 30 degrees. However, the September 2005 VA examiner found flexion was to 140 degrees and there was no additional loss of range of motion on repetitive use or during flare-ups. Accordingly a higher rating under Diagnostic Code 5060 is not warranted. In addition, separate ratings may be assigned under Diagnostic Codes 5260 and 5261, where there is compensable limitation of flexion and extension. See VAOPGCPREC 9-2004 (2004). Here, however, extension was not limited to 15 degrees even with repetitive motion, and a separate rating for limitation of extension is therefore not warranted. The Board must also consider whether any separate rating is warranted for left knee subluxation or instability prior to March 27, 2006. As the Veteran has denied such, and neither the September 2005 examiner nor any other VA treatment records provide findings of subluxation or instability, no such rating is warranted, for the following reasons. Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability warrants a 10 percent rating if it is slight, a 20 percent rating if it is moderate, or a 30 percent rating if it is severe. VA's General Counsel has held that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under Diagnostic Codes 5003 and 5257 provided additional disability is shown. VAOPGCPREC 23-97 (July 1, 1997); VAOGCPREC 9-98 (August 14, 1998). Here, however, the evidence reflects there was no recurrent subluxation or lateral instability of the left knee prior to March 27, 2006. B. From May 1, 2007 The Board will now address the period of time from May 1, 2007 onward, excluding the periods of time during which a temporary 100 percent disability rating was assigned. During this time period, a 30 percent disability rating is in effect under Diagnostic Code 5257-5055. Under Diagnostic Code 5055 applicable to knee replacement (prosthesis), a 100 percent rating is warranted for one year following replacement implantation. Thereafter, where there are chronic residuals consisting of severe painful motion or weakness in the affected extremity, a 60 percent rating is warranted. Where there are intermediate degrees of residual weakness, pain or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256, 5261 or 5262. The minimum rating is 30 percent. Private treatment records of September 2008 show that the Veteran reported left knee pain. Physical examination showed good motion with some synovial swelling with tenderness medially. In July 2008 the Veteran continued to complain of pain in the left knee. There was no swelling and there was good motion. The knee was stable. In January 2009 the Veteran had swelling of the left knee but with good motion. The knee was stable. A pre-surgery orthopedist evaluation of February 18, 2009 shows the Veteran's left knee was stable. Range of motion was to 115 degrees of flexion. VA outpatient treatment records of November 2008 show the Veteran reported left knee pain. At a June 2010 VA examination the Veteran reported stiffness, weakness and pain of the left knee. He denied any instability, giving way, incoordination, or episodes of dislocation or subluxation. He reported constant effusion. There was swelling. He had an antalgic gait. The examiner noted there was no arthritis as the knee had been replaced. There is no functional limitation after three repetitions, excess fatigability, weakened movement, incoordination or ankylosis. There is moderate knee weakness. Range of motion was flexion to 130 degrees and extension to 0 degrees. There was pain on motion and repetitive use. Flare-ups of joint disease were shown with a moderate degree of severity. The Veteran reported weekly flare-ups that last one to two days. Walking and kneeling, aggravate the disability as does squatting and ascending ladders. Walking was limited to one hour and standing was limited to one hour since the total knee replacement. It should be noted that the June 2010 examination refers to a knee replacement having been performed in February 2010; however, a review of the record indicates that the Veteran had a patellofemoral replacement in January 2008, and then had a second procedure in February 2009 (not 2010) to revise the initial replacement to a total knee replacement. Convalescent ratings pursuant to Diagnostic Code 5055 were assigned for both of those periods as noted above. Private treatment records of June and July 2010 show the Veteran complained of left knee pain. At a September 2011 VA examination no instability was noted. The Veteran's left knee disability was considered to be stable, and the Veteran did not currently receive treatment for the condition. Gait was normal. At a March 2012 VA examination the Veteran reported flare ups of his left knee with pain while at rest lasting one to two days. Range of motion was flexion to 120 degrees without objective evidence of pain; extension to 0 degrees with no objective evidence of pain. After repetitive use, flexion remained the same and extension was limited to 5 degrees. There was atrophy due to disuse. Strength was 5/5 on flexion and 4/5 on extension. Lachman test was 1+, and posterior drawer test and medial-lateral instability were normal. There was no patellar subluxation or dislocation. There were intermediate degrees of residual weakness, pain or limitation of motion as a result of the knee replacement. In order to warrant a higher disability rating under Diagnostic Code 5055, the evidence must show severe painful motion or weakness. The Veteran's left knee has been consistently noted to have intermediate or moderate weakness and moderate pain, but not severe. Although the June 2010 VA examination noted effusion, the same report indicated that the condition was moderate. The Veteran has flare-ups, but even with consideration of the flare-ups, which cause added pain, the majority of the time, the condition is moderately disabling, and a higher rating is not for assignment when, as here, the evidence tends to show an overall disability picture that is no more than moderate in degree. There is nothing in the record to suggest that the Veteran's knee pain or weakness has been more than moderate in degree since the knee replacement. Therefore, a higher disability rating under Diagnostic Code 5055 is not warranted. However, pursuant to Diagnostic Code 5055, a disability rating between 30 and 60 percent may be assigned when rated by analogy to Diagnostic Codes 5256, 5261 or 5262. Under Diagnostic Code 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis of the knee with flexion between 10 degrees and 20 degrees. Under Diagnostic Code 5261, limitation of extension to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, malunion with marked knee or ankle disability warrants a 30 percent rating; and nonunion of the tibia and fibula, with loose motion, requiring brace warrants a maximum 40 percent rating. 38 C.F.R. § 4.71a. As there is no evidence of ankylosis or impairment of tibia and fibula, the criteria for a 40 percent rating under Diagnostic Code 5256 and Diagnostic Code 5262 are not met. As for Diagnostic Code 5261, during these periods extension at most was limited to 5 degrees after repetitive use testing, and there was no pain on motion noted according to the March 2012 VA examination report. Thus the Veteran is not entitled to a higher rating under Diagnostic Code 5261. 38 C.F.R. §§ 4.40 , 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Finally, as neither subluxation nor lateral instability is demonstrated, a separate rating under Diagnostic Code 5257 is not for application here. Furthermore, no other diagnostic code for the knee provides a rating of 30 percent or higher that would be appropriate given the Veteran's symptoms. C. Extraschedular Rating While the Board does not have authority to grant an extraschedular rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected knee. A wide range of signs and symptoms are contemplated in the applicable rating criteria and the VA examinations of record address all of the symptoms, which primarily include weakness, pain, and some limitation of extension. These symptoms are contemplated in the rating criteria under Diagnostic Codes 5055, 5260, and 5261. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER A disability rating in excess of 10 percent for the service-connected left knee disability prior to March 27, 2006 is denied. A disability rating in excess of 30 percent for the service-connected left knee disability from May 1, 2007 to February 23, 2009, is denied. A disability rating in excess of 30 percent for the service-connected left knee disability from April 1, 2010, is denied. ____________________________________________ L.B. CRYAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs