Citation Nr: 1335161	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  10-00 653	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Evaluation of residuals of a meniscus derangement and chondromalacia of the left knee rated as 10 percent disabling from July 19, 2011?


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran served on active duty from December 2005 to March 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

This matter was remanded for further development in August 2012.  
FINDING OF FACT

Since July 19, 2011, residuals of meniscus derangement and chondromalacia of the left knee is manifested by remaining functional flexion better than 45 degrees.  


CONCLUSION OF LAW

Since July 19, 2011, the criteria for a rating higher than 10 percent for residuals of meniscus derangement and chondromalacia of the left knee are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260-5010 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As service connection, initial ratings, and effective dates have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. 

VA has also satisfied its duty to assist.  The claims folder contains service treatment records, VA medical records and VA examinations.  No additional pertinent records are shown to be available, and the appellant does not argue otherwise.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim.  No further assistance to the Veteran with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d).  Accordingly, the Board will address the merits of the claim.



Analysis 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).  Given that the Veteran has appealed the initial evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present.  Fenderson.
 
The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are for consideration.  See DeLuca v. Brown, 8 Vet. App. 202 (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.
 
The Veteran's left knee disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260-5010.  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.  38 C.F.R. § 4.27.  Diagnostic Code 5010 addresses arthritis due to trauma, while DC 5260 addresses limitation of flexion of the knee.  Under Diagnostic Code 5260, a 10 percent rating applies when flexion is limited to 45 degrees.  A 20 percent rating applies when flexion is limited to 30 degrees.  Id.  The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71 , Plate II.

The Veteran appeals the 10 percent rating assigned for residuals of a meniscus derangement and chondromalacia of the left knee since July 19, 2011.  The current evaluation contemplates pain on motion or limitation of flexion to 45 degrees.  In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees (subject to 38 C.F.R. § 4.7).  Separate evaluations may be assigned for compensable limitation of extension or subluxation/instability.  A review of the record, however, is against the claim.  To that end, while he complains of knee pain, objective evidence to include the September 2012 VA examination discloses that he retains the functional equivalent of flexion to 90 degrees with objective evidence of painful motion at 35 degrees.  Although functional loss after repetitive testing revealed less movement than normal and pain on movement, there was no additional limitation in range of motion of the knee following repetitive use testing.  These findings provide no basis to provide a higher rating for the left knee as flexion that is limited to 30 degrees or less has not been shown.  Furthermore, the appellant's pleadings are non-specific and do not establish that his disability approximates the functional equivalent of limitation of flexion to 30 degrees.
 
The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and tenderness.  The Board also acknowledges his report of functional limitations to include increased pain with lifting and carrying objects.  The Veteran is competent to report such symptoms.  See Layno v. Brown, 6 Vet. App. 465 (1994).  The Board has considered the pleadings and reports, and finds that the Veteran is credible in reporting the severity of his disability.  The more credible and probative evidence, however, is devoid of showing that the criteria for the next higher evaluation have been met.  Although the Veteran has reported knee pain, pain is considered in the current evaluation.  See 38 C.F.R. § 4.59.  Past examinations disclosed some limitation, but nothing approximating the functional equivalent of limitation of flexion to 30 degrees or less.  Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported, the competent evidence does not show the functional equivalent of disability required for a higher evaluation.  Stated differently, although we accept that he has pain at 30 degrees, his pain does not limit function to 30 degrees.  Rather, he retains functional flexion to better than 45 degrees.

The Board has considered whether a separate compensable evaluation is warranted based on instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257.  Objective evidence to include the September 2012 VA examination, however, reveals no showing of giving way, subluxation/dislocation and/or instability of the left knee.  The Board has also considered whether a separate compensable evaluation is warranted based on limitation of extension.  38 C.F.R. § 4.71a, Diagnostic Code 5261.  The VA examination also discloses that the Veteran retains full extension.  Neither the lay nor medical evidence suggest that he has a compensable degree of limitation of extension.  Accordingly, the above diagnostic codes are not for application.  The evidence is also devoid of a showing of ankylosis (DC 5256) or impairment of the tibia and fibula (5262).  As such, the codes noted above are not applicable.

The record reflects that the Veteran has been diagnosed with meniscal tear of the left knee.  The Board, therefore, has considered whether a separate rating under Diagnostic Code 5258 is warranted.  A review of the evidence of record, however, shows that the Veteran's disability has not been manifested by frequent episodes of locking, pain, and effusion into the joint to warrant a separate compensable rating.  To that end, when specifically asked the September 2012 VA examiner failed to associate frequent episodes of locking, pain, and effusion as symptoms of the Veteran's disability.  Rather, he just marked mensical tear.  Although he had a mild effusion on the left in August 2011, in July 2011, he did not have an effusion.  Similarly, the 2012 examiner did not indicate the presence of an effusion or locking, despite his report of catching.  The cumulative record establishes that he does not have frequent episodes.  Accordingly, a separate rating under Diagnostic Code 5258 is not warranted.  

The Board has considered whether the Veteran meets the criteria for a separate compensable rating for left knee scarring.  As scarring of the left knee is not shown upon examination and the Veteran does not allege otherwise, consideration of 38 C.F.R. § 4.118, Diagnostic Codes7801-7804 is also not warranted.  
 
The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In this case, the Board finds no other provision upon which to assign a higher rating.  Accordingly, the claim is denied.  In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b). 
 
The Board considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted.  See 38 C.F.R. § 3.321(b)(1) ; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  There are no exceptional or unusual factors with regard to the Veteran's disability.  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.")  Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Consequently, referral for extra-schedular consideration is not warranted.

Finally, there is no evidence that the appellant is unemployable as a result of this service connected disability.  While his left knee disability is shown to impact his ability to work, he has not been rendered unemployable as a result of his disability.  Consequently, there is no implicit claim of entitlement to a total disability rating based on individual unemployability.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). 


ORDER

A rating higher than 10 percent for residuals of a meniscus derangement and chondromalacia of the left knee from July 19, 2011 is denied.  


____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs