Citation Nr: 1329928 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 09-15 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to a separate compensable rating for instability of the right knee prior to February 7, 2011, and to a rating in excess of 10 percent thereafter. 2. Entitlement to an increased rating for residuals, remote meniscal tear, right knee, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee disability. 4. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to July 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In a March 2012 rating decision, the RO granted a separate 10 percent rating for instability of the right knee, effective February 7, 2011. In September 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In December 2010 and in June 2012, the Board remanded the Veteran's claims for additional development. The issue of entitlement to service connection for a low back disability, to include as secondary to service-connected right knee disability, and the issue of entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. During the entire period of time covered by this claim that is prior to February 7, 2011, the Veteran experienced slight instability of the right knee. 2. During the entire period of time covered by this claim the Veteran has not experienced more than slight instability of the right knee. 3. During the entire period of time that is covered by the claim the Veteran has had 90 degrees or more of painless flexion of the right knee. 4. There is medical evidence that the Veteran has had had right knee extension restricted to 10 degrees, but not to 15 degrees or more. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating prior to February 7, 2011 for instability of the right knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 2. The criteria for a rating in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2012). 3. The criteria for a rating in excess of 10 percent for residuals, remote meniscal tear, right knee, based on limitation of flexion, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260 (2012). 4. The criteria for a separate 10 percent rating for residuals, remote meniscal tear, right knee, based on limitation of extension, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In September 2007, prior to the December 2007 rating decision on appeal, the RO sent a letter to the Veteran which advised him of the VCAA, including the types of evidence and/or information necessary to substantiate the claim, and the relative duties upon himself and VA in developing his claim. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This letter advised him of the bases for assigning ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the Veteran's VA treatment records have been obtained and the Veteran has been provided VA medical examinations. In September 2010, the Veteran provided testimony at a hearing. The Veteran has been accorded ample opportunity to present evidence and argument in support of the appeal. Neither the Veteran nor his representative has indicated that there is any additional obtainable evidence that should be obtained to substantiate the claims. With respect to the September 2010 Travel Board hearing, the United States Court of Appeals for Veterans Claims (Court) held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the September 2010 hearing, the Veterans Law Judge enumerated the issues on appeal. Information was obtained regarding the history of the Veteran's right knee disability, his current symptoms, and the effect the Veteran's right knee disability has on his activities. The Veteran has not asserted that there was any prejudice with regard to the conduct of the hearing. Moreover, during the hearing it was brought to light that the Veteran had failed to report for a VA examination because he did not receive notice of the examination. The Veterans Law Judge asked the Veteran if he would be willing to come to a new VA examination. Since that time the Veteran has been provided a new VA examination. Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) . In sum, the Board is satisfied that the originating agency properly processed the Veteran's claim after providing the required notice and that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. The VA treatment reports and VA examination reports since August 2006 contain various diagnoses including, right knee arthralgia, right knee patellofemoral syndrome, tight iliotibial band, and mild osteoarthritis of the right knee. MRI studies in February 2007 and July 2011 revealed no significant interval change, no evidence of meniscal tear, and no abnormal signal in the bone marrow. X-rays performed in September 2011 revealed mild joint space narrowing. At his September 2010 hearing the Veteran testified that he sometimes wears a brace on his right knee. He reported that he sometimes lost his balance and that his leg would give out when climbing in and out of a truck. A September 2011 VA outpatient record notes that the Veteran reported increasing pain and frequency of knee buckling. He also reported no relief of right knee pain from NSAIDS and that he now used oxycodone for pain relief. An April 2012 VA treatment record reveals that the Veteran reported that his right knee gave out when he picked up his children. In June 2012 he reported chronic right knee pain and instability. On VA examination in March 2013 the Veteran reported constant right knee pain. Instability The Veteran's claim for an increased rating for his right knee disability was received in August 2007. At that time he had a 10 percent rating in effect under DC 5260 for residuals of remote meniscal tear of the right knee. By rating decision in March 2012, the RO granted the Veteran a separate 10 percent rating for instability of the right knee under DC 5257, effective from February 7, 2011. Under DC 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board finds that the Veteran is entitled to a 10 percent rating for instability of the right knee during the entire appeal period. In January 2007, the Veteran reported during a VA primary care appointment that he had severe pain and the knee gave way at times. The clinician diagnosed persistent right knee pain and instability. Given that VA treatment records dated prior to February 7, 2011 include an assessment of instability and as the Veteran complained of instability, the Board finds that the Veteran's right knee symptoms have included slight instability during the entire appeal period. Accordingly, the Veteran is entitled to a 10 percent rating for instability of the right knee prior to February 7, 2011. However, the Board notes that at no time during the claim period has the medical evidence demonstrated any objective evidence of more than slight recurrent subluxation or instability. In this regard, the September 2007 VA examiner did not make any specific findings of laxity but did note that the anterior drawer and Lachman tests were negative. An October 2010 VA treatment record (in the virtual folder) notes that all tests for right knee laxity were negative. In a November 2010 VA physical medicine and rehabilitation consult, it was noted that the Veteran had a 1A Lachman's, indicating slight laxity. The February 2011 VA examiner also found that the Veteran's right knee was slightly lax, but was within normal limits. The examiner stated that there was no other laxity, no joint line tenderness, and negative McMurray's. On VA examination in March 2013 all tests for instability were negative and the examiner indicated that there was no evidence of recurrent patellar subluxation or dislocation. The VA treatment records reflect repeated complaints from the Veteran of right knee instability. Although the Veteran is competent to state that his right knee feels unstable and that he has fallen, and such statements are entitled to probative weight, the objective medical tests undertaken to evaluate such complaints have not been supportive of any increase to his current rating for slight recurrent subluxation or instability. The only objective evidence of laxity indicates that the right knee was slightly lax. In light of those findings and the Veteran's reports of instability throughout the claim period, the Board finds that a 10 percent rating is warranted prior to February 7, 2011, and thereafter. However, the preponderance of the evidence is against finding that a higher rating is warranted. At no point has a clinician assessed the Veteran as having moderate or severe instability. The only positive medical findings, which also provided assessments as to severity, indicated that the knee is slightly lax. Upon weighing the medical evidence and the Veteran's assertions, the Board finds that the medical evidence is more persuasive based on the medical training of the clinicians and the testing that was conducted to determine if the Veteran has instability and, if so, the severity thereof. Under Diagnostic Code 5257, the Board finds that a 10 percent rating is warranted prior to February 7, 2011, but that the preponderance of the evidence is against finding that the Veteran is entitled to a rating in excess of 10 percent for instability of the right knee at any time during the period of time that is covered by the claim. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings may be assigned during the appeal of any increased rating claim). Residuals of remote meniscal tear With regard to the Veteran's current 10 percent rating under DC 5260, a higher rating for loss of flexion is not warranted during the time period on appeal, because, the Veteran's range of motion has not at any time been limited to the extent of the next higher rating under DC 5260. In a January 2007 VA medical record, the Veteran was noted to have pain on flexion and extension. When examined in September 2007, the Veteran had 115 degrees of right knee flexion with pain beginning at 90 degrees. Repetition increased the level of pain but did not reduce the range of motion. There was no evidence of fatigue, weakness, or lack of endurance. The Veteran did not report additional limitation following repetitive use or during flare-ups. A September 2007 VA treatment record reveals that the Veteran had pain on flexion. An August 2010 VA treatment record indicates that the Veteran had full range of motion of the right knee. On VA examination in February 2011, the Veteran had 127 degrees of right knee flexion and the examiner stated that the Veteran did not appear to give full effort when flexing the right knee. Repeated flexion and extension of the right knee caused some pain both medially and laterally, but no weakness, fatigue, incoordination, or decreased range of motion. VA examination in March 2013 revealed the Veteran to have 125 degrees of right knee flexion with objective evidence of painful motion at 100 degrees. The Veteran did not report that flare-ups impacted the function of the right knee. He did not have additional limitation of motion of the right knee following repetitive testing. The examiner stated that the Veteran had no functional loss or functional impairment of the right knee after repetitive use. A higher (20 percent) rating for limitation of flexion under Diagnostic Code 5260 would require the functional equivalent of flexion limited to 30 degrees or less. Here, there is no lay or medical evidence that suggests that flexion is limited to 30 degrees or less. As noted above, during the appeal period the Veteran's right knee flexion has been measured as 90 degrees or more. None of the evidence suggests the functional equivalent of limitation of flexion to 30 degrees. The Board notes that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. As noted above the medical evidence has shown that the Veteran has flexion to at least 90 degrees, with pain not beginning until 90 degrees or more. Furthermore, VA examiners have noted that there Veteran had no further loss of range of motion of the right knee with repetitive use nor was there further loss of function due to pain, fatigue, weakness, lack of endurance, or incoordination. In addition, the Veteran has not reported any additional limitation of motion during flare-ups. Consequently, the Veteran has not met the criteria for a rating in excess of 10 percent under DC 5260, even with consideration of DeLuca factors. A rating in excess of 10 percent for limitation of flexion of the right knee is not warranted at any time during the appeal period. See Hart. However, the Board does find that the Veteran is entitled to a separate 10 percent rating under DC 5261 for limitation of extension of the right knee. The VA General Counsel has issued a precedential opinion holding that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004. Under Diagnostic Code 5261, a 20 percent rating is appropriate where extension is limited to 15 degrees; a 10 percent rating is appropriate where extension is limited to 10 degrees; and a zero percent rating is appropriate where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5261. VA examination in September 2007 revealed full extension (0 degrees) of the right knee, and the February 2011 VA examination revealed extension limited to 2 degrees. In September 2007, the examiner noted that the Veteran did not report additional limitation following repetitive use or during flare-ups. The examiner reported that on repetitive range of motion, the knee pain was slightly increased but the range of motion remained the same. There was no evidence of fatigue, weakness, or lack of endurance. In March 2013, a VA examiner indicated that the Veteran had limitation of extension to 10 degrees, later in the examination report he indicated that the Veteran had full extension of the right knee after repetitive use. Given that the Veteran has been found to have right knee extension limited to 10 degrees in March 2013, and given the Veteran's complaints of limitation of motion of the right knee, the Board finds that a separate 10 percent rating under DC 5261 is warranted based on limitation of extension of the right knee. The Board notes that none of the medical evidence has ever indicated that the Veteran has had right knee extension restricted to more than 10 degrees. As noted above, more frequently the Veteran has been shown to have almost full extension of the right knee. Consequently, the Veteran is not entitled to a separate rating in excess of 10 percent for limitation of extension of the right knee even when considering additional limitation due to functional factors. See DeLuca. The Veteran has not reported any additional limitation of motion due to flare-ups nor has any additional deficit been found on examination as a result of factors such as weakened movement, excess fatigability, incoordination, or pain. Accordingly, the Board finds that the Veteran is entitled to a separate 10 percent rating, but no higher, under DC 5261 for limitation of extension of the right knee. The Board notes that DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Additionally, DC 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. However, the Board finds that the Veteran has not met the criteria for award of a separate rating under either DC 5258 or 5259. The medical evidence of record reveals that the Veteran complained of locking during the March 2013 examination. However, previously he denied locking in a November 2010 VA treatment record. Additionally, none of the medical evidence indicates any current deficit with respect to the Veteran's right knee semilunar cartilage. The MRI studies in February 2007 and July 2011 indicated unremarkable cartilaginous surfaces and no evidence of a meniscal abnormality. In addition, the VA examiner in 20013 found that the Veteran did not have a meniscal condition. Moreover, one report of locking during the claim period would not constitute frequent episodes of "locking" pain. Consequently, the Veteran would not be entitled to a separate rating under either DC 5258 or DC 5259. The above determinations are based on application of pertinent provisions of VA's Schedule for Rating Disabilities. The Board notes that there is no indication that referral is warranted in this case for consideration of the assignment of a disability rating on an extraschedular basis. See 38 C.F.R. § 3.321(b) . The Court clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). A determination of whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology first must be made by the RO or Board. If the rating criteria are inadequate, the RO or Board must proceed to determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this appeal, there has been no showing that the Veteran's right knee disability picture is not contemplated adequately by the applicable schedular rating criteria discussed above. Those criteria provide for higher ratings, but as has been explained herein, the currently assigned ratings for the right knee adequately describe the severity of the Veteran's right knee symptoms of pain, limitation of motion, and instability. The Veteran's symptoms, including pain and swelling, ultimately result in limitation of motion and instability, which are contemplated by the schedular criteria. Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes such exceptional factors as periods of hospitalization and interference with employment, which, in any event, have not been documented. Referral for consideration of the assignment of a disability rating for the right knee on an extraschedular basis, therefore, is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a 10 percent rating prior to February 7, 2011 for instability of the right knee is granted, subject to the law and regulation regarding the award of monetary benefits. Entitlement to rating in excess of 10 percent for instability of the right knee, is denied. Entitlement to a rating in excess of 10 percent for residuals, remote meniscal tear, based on limitation of flexion, is denied. Entitlement to a separate 10 percent rating for residuals, remote meniscal tear, based on limitation of extension, is granted, subject to the law and regulation regarding the award of monetary benefits. REMAND The Veteran's claim was remanded by the Board in June 2012 in order to obtain a medical opinion as to whether the Veteran has a current back disorder that is worsened beyond the natural progress of the condition by the service-connected right knee disabilities. The Veteran was provided a VA medical examination in March 2013. Although the VA examiner opined that the Veteran's low back pain was not related/secondary to his service-connected right knee, he did not provide an opinion as to whether any of the Veteran's current back disorder is aggravated (chronically worsened) by the Veteran's service-connected right knee disabilities. The medical opinion was therefore inadequate, and a remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). At his September 2010 hearing the Veteran testified that he could no longer work as a truck driver due to his service-connected right knee disability. Accordingly, TDIU must also be considered. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a VCAA notice letter regarding the issue of entitlement to TDIU in accordance with 38 U.S.C.A. §§ 5102, 5103, and 5103A, 38 C.F.R. § 3.159, and applicable legal precedent. 2. Send the Veteran a TDIU application form so that he may submit his educational and occupational history. 3. Refer the claims folder to the examiner who performed the March 2013 VA examination (if available) to obtain an addendum opinion. The examiner should opine as follows: a. Is it at least as likely as not (a 50 percent or greater probability) the Veteran's low back disability began in or is related to service. Please provide a complete explanation for the opinion. b. Is it at least as likely as not (a 50 percent or greater probability) the Veteran's low back disability was caused by the service-connected right knee disorders, including as a result of an altered gait. Please provide a complete explanation for the opinion. c. Is it at least as likely as not that a current back disorder is aggravated (i.e., worsened) beyond the natural progress of the condition by the service-connected right knee disabilities, including as a result of an altered gait. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's low back disorder found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected right knee disabilities. Please provide a complete explanation for the opinion. The examiner's attention is directed to VA treatment records dated in October 2007, July 2010, and September 2010 indicating that the Veteran walked with an antalgic gait favoring the right leg and that the Veteran had a mild limp due to pain in his right knee. Attention is also drawn to a July 2010 VA mental health consult that contains a notation that the Veteran reported that his back disability was caused by his right knee disability. If the examiner who performed March 2013 examination finds that another examination is necessary or is unavailable to complete this addendum, the Veteran should be scheduled for a new examination. 4. Thereafter, readjudicate all issues that are in appellate status and furnish the Veteran and his representative a supplemental statement of the case for all claims that remain less than fully favorable to the Veteran. The Veteran should be afforded the appropriate period of time to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs