Citation Nr: 1328985 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 04-38 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating higher than 10 percent for post-operative medial meniscectomy of the left knee with synovitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Counsel INTRODUCTION The Veteran had active service from June 1976 to April 1981. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2007, June 2010, and April 2011, the Board remanded this claim for additional development. That development having been completed, the claim is now ready for appellate review. The Board notes that in Rice v. Shinseki the United States Court of Appeals for Veterans Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim cannot be considered separate and apart from an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not raised a claim for TDIU and the evidence does not indicate that he is unemployable due to his service-connected disabilities. See May 2013 VA examination. Accordingly, the Board finds that Rice is not applicable in this case. FINDINGS OF FACT 1. The Veteran's post-operative medial meniscectomy of the left knee with synovitis is not manifested by ankylosis, moderate recurrent subluxation or lateral instability, dislocated semilunar cartilage, limited extension, impairment of tibia and fibula, or genu recurvatum. 2. The Veteran's post-operative medial meniscectomy of the left knee with synovitis is manifested by symptomatic removal of semilunar cartilage and left leg flexion limited to 45 degrees, with pain. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for post-operative medial meniscectomy of the left knee with synovitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5261, 5262, 5263 (2012). 2. The criteria for a separate disability rating of 10 percent, but no higher, for symptomatic removal of semilunar cartilage of the left knee are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2012). 3. The criteria for a separate disability rating of 10 percent, but no higher, for limitation of flexion of the left leg are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the 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, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for an increased disability rating, the VCAA requirement is generic notice, that is, namely, evidence demonstrating a worsening or increase in severity of the disability, the effect that worsening has on employment, and general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2004 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. An additional letter was sent in October 2007. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). The claim was subsequently adjudicated in a June 2013 Supplemental Statement of the Case (SSOC). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are private medical records, and post-service VA examination and treatment records. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. 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). (CONTINUED ON NEXT PAGE) II. Entitlement to a Rating Higher Than 10 Percent for Post-Operative Medial Meniscectomy of the Left Knee with Synovitis The Veteran seeks a rating higher than 10 percent for his post-operative medial meniscectomy of the left knee with synovitis. He asserts his disability is more severe than what is represented by a 10 percent rating. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two ratings shall be applied, the higher evaluations 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. 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 analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Service connection for medial meniscectomy of the left knee with synovitis was established by a September 1981 rating decision, at which time a 10 percent rating was assigned, effective from April 1981. The Veteran submitted a claim for an increased rating in November 2004, which was denied in a February 2005 rating decision. The Veteran is rated as 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for slight recurrent subluxation or lateral instability. Knee disabilities are also rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 and a Veteran also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if a Veteran does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Rating the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Private records were reviewed. In November 2003, the Veteran complained of his left knee becoming worse with age. Physical examination indicated some left knee edema. In December 2003, the Veteran again complained of left knee joint pain, but the knee had full range of motion. The Veteran complained of knee pain in March 2004 and examination revealed mild edema of the left knee with mild crepitus occasionally. The Veteran was scheduled for a VA examination in December 2004, but he failed to appear. VA outpatient records indicate the Veteran sought treatment for left knee pain in August 2006. He stated that he had deep pain in the knee, with swelling at night. The Veteran stated it caused him to limp when it swelled. Examination revealed he had 120 degrees of flexion with a positive patellofemoral grind test. He had popliteal fullness. There was no medial lateral laxity with extension or 30 degrees of flexion. Lachman's and McMurray's were negative. Sensation was intact and x-rays were unremarkable. He again reported knee pain was slowly worsening in October 2006. Examination revealed the left knee was without effusion, laxity, or loss of motion. Private records indicate that in December 2008, an examination revealed the Veteran had some decreased range of motion of the left leg, but otherwise, it was within normal limits. In November 2009, the Veteran continued to seek treatment for left knee pain and in December 2009, he complained of knee swelling. There was noted left knee effusion and crepitus. In October 2010, the Veteran indicated his left knee was stiff. In November 2010, the Veteran complained of chronic pain, swelling, and reported that his left knee buckled. In February 2011, the Veteran reported left knee arthritis pain. In April 2011, the Veteran reported throbbing left knee pain and inability to bend the knee when sleeping. Examination revealed left knee pain and edema. In January 2012, the Veteran again reported left knee pain. In July 2012, the Veteran reported left knee pain and swelling. In February 2012, it was noted that the Veteran experienced chronic left knee pain and swelling. An x-ray from April 2013 demonstrated no fracture, dislocation, effusion, or subluxation. There was no degenerative or unusual arthropathy. The Veteran was afforded a VA examination in May 2013. Examination revealed a left knee flexion to 100 degrees, with pain beginning at 45 degrees. Left knee extension was to zero degrees with no objective evidence of painful motion. The Veteran was not able to perform repetitive use testing with three repetitions, as the left knee was too weak and painful. It was noted that the left leg had less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, disturbance of location and interference with sitting, standing, and weight bearing. The Veteran also had tenderness or pain to palpation of the joint. Knee flexion strength was 3 out of 5 and knee extension strength was 2 out of 5. Joint stability was normal. There was no history of recurrent patellar subluxation or dislocation. It was noted that the Veteran had a meniscal tear with frequent episodes of joint locking, joint pain, and joint effusion, as well as a meniscectomy. Residuals of the meniscectomy included crepitance, swelling, locking, joint effusion, and giving way. The examiner noted that the Veteran had 5 degree left varus angulation with left quadriceps muscle atrophy but that he did not use any assistive device as a normal mode of locomotion. Additionally, the Veteran had surgical scars on the left knee, but they were not painful, unstable, or greater than 6 square inches. The examiner noted that the Veteran was unable to carry or climb stairs and ladders but that clerical and sedentary occupations were not precluded. As stated previously, knee disabilities are evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263, which rate disabilities of the knee and leg. Here, Diagnostic Codes 5256, 5262, and 5263 are not applicable because there is no medical evidence of knee ankylosis, impairment of the tibia and fibula, or genu recurvatum. The Veteran's current rating, Diagnostic Code 5257, rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of the joint. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Veteran is currently receiving 10 percent for slight recurrent subluxation or lateral instability. A rating of 20 percent is warranted for moderate recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Private records indicate that in November 2010 the Veteran reported that his left knee buckled. Additionally, during the May 2013 VA examination, the examiner noted that residuals of the meniscectomy included giving way. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, there was no instability found during an outpatient treatment in August 2006, as it was noted there was no medial lateral laxity. Furthermore, joint stability was normal during the May 2013 VA examination. As such, the Board finds that the current 10 percent rating appropriately compensates the Veteran's symptoms of instability. Under Diagnostic Code 5258, the Veteran must have dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion. The Board notes that the May 2013 VA examiner indicated that the Veteran suffers from locking, pain and effusion; however, he does not have dislocated semilunar cartilage. See May 2013 VA examination. As such, this Diagnostic Code is not applicable. Importantly, the Veteran has removal of semilunar cartilage that is symptomatic. See May 2013 VA examination. As such, the Board finds the Veteran is entitled to a separate rating of 10 percent based on Diagnostic Code 5259. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5260, to receive a noncompensable rating, limitation of flexion must be to 60 degrees; to receive a 10 percent rating limitation of flexion of the leg must be limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. For a 20 percent rating, limitation of flexion of the leg must be to 30 degrees and for a 30 percent rating, flexion must be limited to 15 degrees. Id. Under Diagnostic Code 5261, a noncompensable rating will be assigned for extension limited to 5 degrees, a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees, 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees, 30 percent rating for limitation to 20 degrees, 40 percent rating for limitation to 30 degrees and 50 percent rating for limitation to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board finds that a separate rating of 10 percent is warranted for limitation of flexion, under Diagnostic Code 5260, as there is evidence that the Veteran's flexion was limited to 45 degrees due to pain during the May 2013 VA examination. A rating higher than 10 percent is not warranted, as there is no evidence that the Veteran's flexion was limited to less than 45 degrees. The evidence of record does not establish that the Veteran is entitled to a separate rating based on limitation of extension under Diagnostic Code 5261. As evidenced in the May 2013 VA examination, the Veteran's extension was zero degrees and there was no objective evidence of pain. In reaching these conclusions for Diagnostic Code 5260 and 5261, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4.40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran's complaints of knee pain and stiffness. These complaints are well documented in the Veteran's written statements and treatment records. As such, the Veteran has been awarded a 10 percent rating based on limitation of flexion to 45 degrees due to pain. However, even taking into consideration the painful movement during extension, evidence demonstrates the Veteran's extension is not limited. Therefore, a rating under Diagnostic Code 5261 is not warranted, and a rating higher than 10 percent under Diagnostic Code 5260 is not warranted. Additionally, a separate rating for arthritis is not assigned. An x-ray taken in April 2013 did not demonstrate any degenerative or unusual arthropathy. The Board has also considered whether any additional Diagnostic Codes are applicable; however, the Board finds that the ratings for the knee and leg are the most appropriate. In summary, although the Veteran is not entitled to a higher rating based on Diagnostic Code 5257, the Board finds that a separate disability rating of 10 percent for limitation of flexion, under Diagnostic Code 5260, and a separate disability rating of 10 percent for symptomatic removal of semilunar cartilage under Diagnostic Code 5259 are warranted. Extraschedular Consideration The Board finds that the Veteran's left knee disability does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claim for extraschedular consideration. The level of severity of his left knee is appropriately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the rating assigned herein is appropriate. In this regard, as a result of this decision, the Veteran's left knee has been awarded separate increased disability ratings of 10 percent for limitation of flexion and 10 percent for symptomatic removal of semilunar cartilage. In view of the adequacy of the disability ratings assigned under the applicable diagnostic criteria, consideration of the second step under Thun is not for application in this case. Accordingly, the claim will not be referred for extraschedular consideration. ORDER Entitlement to a rating higher than 10 percent for post-operative medial meniscectomy of the left knee with synovitis is denied. A separate rating of 10 percent, but no higher, for limitation of flexion of the left leg is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. A separate rating of 10 percent, but no higher, for symptomatic removal of semilunar cartilage of the left knee is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs