Citation Nr: 1335198 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-08 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals, right knee anterior cruciate ligament (ACL) reconstruction. 2. Entitlement to an initial disability rating in excess of 10 percent for recurrent subluxation, right knee, associated with residuals, right knee anterior cruciate ligament reconstruction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran served on active duty from June 1996 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California which granted service connection for ACL reconstruction of the right knee and assigned a noncompensable evaluation as of October 16, 2004. In a February 2007 statement of the case (SOC), the RO increased the rating to 10 percent for ACL reconstruction of the right knee as of October 16, 2004. In March 2009, the RO granted service connection for subluxation of the right knee and assigned a 10 percent rating as of October 16, 2004. In January 2013, the Board remanded this matter for additional development. The development included obtaining outstanding VA treatment records, records from the Social Security Administration (SSA) and obtaining an addendum opinion to the September 2011 VA examination. The record reflects that the VA treatment records were obtained and associated with the claims file. The RO requested SSA records and received a response indicating that there are no SSA records available for the Veteran. An addendum medical opinion was obtained in May 2013. Therefore, the Board concludes there was substantial compliance with the remand directives of January 2013. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Throughout the initial rating period, the Veteran's right knee ACL reconstruction was manifested by complaints of pain, with full extension and with flexion no less than 90 degrees. 2. Throughout the initial rating period, recurrent subluxation of the right knee was no more than slight. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of right knee ACL reconstruction have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Codes 5003, 5258, 5260, 5261 (2011). 2. The criteria for an initial rating in excess of 10 percent for right knee subluxation have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5257 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). Here, prior to the initial rating decision in this matter, an October 2004 letter informed the Veteran of the evidence required to substantiate his service connection claim and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. A March 2006 letter informed the Veteran of provisions regarding disability ratings and effective dates. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Therefore, the Board concludes that the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. The evidence that has been associated with the claims file includes the Veteran's service treatment records and VA outpatient treatment records. The RO attempted to obtain Social Security records. A response from the Social Security Administration in February 2013 indicated that there are no medical records for the Veteran and that further efforts to obtain such records would be futile. VA provided the Veteran with examinations in November 2005, December 2010, September 2011. An addendum opinion was obtained in May 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The November 2005, December 2010 and September 2011 examinations included thorough findings regarding the Veteran's right knee symptoms and the manifestations of his disabilities and included an interview of the appellant and review of the claims file. The May 2013 addendum opinion was based upon a thorough review of the claims file, including VA examination findings. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Initial Rating Claims 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. 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. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). 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. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the Veteran is appealing the initial assignment of disability ratings, and as such, the severity of the disabilities is to be considered during the entire period from the initial assignment of the disability ratings to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that "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). It should also be noted 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 205. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating, and rating disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Right Knee ACL Reconstruction An April 2005 rating decision granted service connection for anterior cruciate ligament reconstruction of the right knee and assigned a non-compensable evaluation from October 2004. An April 2005 rating decision increased the evaluation for anterior cruciate ligament reconstruction of the right knee to 10 percent, effective from October 2004. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation 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 Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Diagnostic Code 5260 pertains to limitation of flexion. A 0 percent evaluation is assignable when flexion is limited to 60 degrees. A 10 percent evaluation is assignable when flexion is limited to 45 degrees. A 20 percent evaluation is assignable where flexion is limited to 30 degrees. An evaluation of 30 percent is assignable when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 applies to limitation of extension of the leg. A 0 percent evaluation is assignable for extension limited to 5 degrees. A 10 percent evaluation is assignable for extension limited to 10 degrees. A 20 percent evaluation is assignable for extension limited to 15 degrees. A 30 percent evaluation is assignable for extension limited to 20 degrees. A 40 percent evaluation is assignable for extension limited to 30 degrees. A 50 percent evaluation is assignable when extension is limited to 50 degrees. 38 C.F.R. § 4.71a. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (2012). In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. The General Counsel has also directed that separate ratings are available if a particular knee disability causes both the compensable (10 percent) limitation of extension (Diagnostic Code 6261) and compensable limitation of flexion (Diagnostic Code 6260) of the same joint. Specifically, where a veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04. The Veteran's right knee ACL reconstruction is rated according to Diagnostic Code 5260. A 10 percent rating has been assigned for non-compensable painful flexion of the right knee. The Veteran asserts that a higher rating is warranted for his right knee disability. In statements in support of his claim, the Veteran has noted that he has extreme right knee pain and that his knee hurts with prolonged sitting and standing. The Veteran has indicated that this affects his ability to perform activities such as flying in a plane, driving and standing in lines. The Veteran had a VA examination in November 2005. The Veteran reported a history of ACL reconstruction of the right knee, with surgery in January 2001. He reported that the right knee was fine for two months, and he then had increasing pain and swelling. The Veteran reported swelling, severe pain, and grinding of his right knee daily, lasting for 10 to 12 hours. He reported that he had to sit and elevate his right knee during that time. The Veteran reported that he could still perform work, but it was limited. The VA examiner noted that the functional impairment resulting from the right knee condition was that the Veteran could not do kneeling, avoided jumping or running and could not do prolonged standing, walking or heavy lifting. The Veteran reported that he lost time from work 1 to 2 times a month. Upon examination of the right knee, there was slight recurrent subluxation without locking pain, joint effusion or crepitus. There was no ankylosis. The VA examiner noted that the knees had flexion of 120 degrees out of 140 degrees and extension of zero degrees with pain, fatigue, weakness, lack of endurance and incoordination. Pain had the major impact on function. After repetitive motion, the Veteran had additional limitation of flexion of 100 degrees out of 140 degrees and extension of 0 degrees with pain, fatigue, weakness, lack of endurance and incooordination. The VA examiner indicated that pain had the major impact on function. The VA examiner noted that this could not be determined without resort to speculation. The VA examiner indicated that Drawer test was normal on the right. McMurray's test was slightly abnormal on the right. A VA treatment record dated in January 2010 shows that the Veteran was seen in the emergency room with right knee pain and a history of degenerative joint disease of the knee, status post ACL repair. The Veteran reported chronic right knee pain, which was worse over the past few weeks and increased while driving his car. The Veteran was discharged with a diagnosis of right knee pain. The Veteran had a VA examination in December 2010. The Veteran reported symptoms of stiffness, swelling, lack of endurance, tenderness and pain. The Veteran indicated that he did not experience weakness, heat, redness, giving way, locking, fatigability, deformity, drainage, effusion, subluxation or dislocation. The Veteran reported that flare-ups were precipitated by physical activity. The Veteran reported that, during flare-ups, he experienced functional impairment, including difficulty with prolonged standing, walking, climbing up and down stairs, and limitation of motion. The Veteran reported difficulty with standing and walking. He described difficulty standing more than 15 minutes or walking for extended periods of time. Upon physical examination of the right knee, there was tenderness of the knee. The examiner indicated that there was no edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment or drainage. The examiner indicated that there was no subluxation. Range of motion testing showed flexion of the right knee to 90 degrees with pain at 90 degrees. The Veteran had full extension of the knee with pain noted at -10 degrees. The examiner indicated that there was no additional limitation of motion with repetitive motion. The examiner noted that the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Veteran had a VA examination in September 2011. The Veteran reported right knee pain. The Veteran indicated that he did not experience weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, drainage, effusion, subluxation or dislocation. The Veteran reported experiencing flare-ups one time per day, lasting for three hours. The Veteran reported that the severity was a 9 on a scale of 1 to 10. He reported that the flare-ups were precipitated by physical activity. He reported that he experienced functional impairment due to pain during flare-ups. The Veteran reported difficulty with standing and walking and described an inability to walk or sit for long periods of time. Upon physical examination of the right knee, there was no edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. Range of motion testing showed flexion to 140 degrees, with pain at 135 degrees. The examiner noted that the Veteran had flexion to 135 degrees upon repetitive motion. The flexion of the knee was additionally limited by 5 degrees on repetitive motion. The examiner indicated that the joint function was additionally limited by pain after repetitive use, and pain had the major functional impact. The examiner noted that stability tests of the right knee were within normal limits for anterior and posterior cruciate ligaments, medial and collateral ligaments and the medial and lateral meniscus. The examiner noted that the effect on the Veteran's usual occupation was difficulty standing or walking for a long period. In January 2013, the Board remanded the case to obtain additional clarification of the findings made at the September 2011 VA examination. The VA examiner was requested to state whether additional limitation of motion of the right knee after repetitive range of motion was limited to flexion of the right knee or if the examiner simply omitted pertinent findings regarding extension of the right knee. In May 2013, a physician reviewed the claims file and provided an addendum opinion. The examiner stated that it was his opinion, based on review of the VA examinations in December 2010 and September 2011, as well as VA electronic medical records, that the Veteran is status post right knee anterior cruciate ligament reconstruction with an intact ACL graft, with current residuals of his right knee anterior cruciate ligament reconstruction consisting of range of motion with full extension to 0 degrees with pain beginning at -10 degrees, and right flexion was limited by pain beginning at 90 degrees. After repetitive use, it was noted that flexion was limited to 135 degrees. The above evidence reflects that, throughout the initial rating period, the Veteran's right knee anterior cruciate ligament reconstruction has been manifested by pain and limitation of motion; however, the evidence provides no basis for assignment of an increased rating during this period. There is no evidence establishing that extension is limited to 15 degrees or that flexion is limited to 30 degrees. The Veteran's right knee range of motion during the rating period has been manifested by flexion of no less than 90 degrees and by full extension of the knee. The range of motion findings do not warrant a rating in excess of 10 percent under either DC 5260 or 5261. The evidence also provides no basis for assignment of separate ratings for limited flexion and extension. See VAOPGCPREC 9-2004 (2004). The Board points out that the currently assigned 10 percent rating assigned is consistent with the provisions of 38 C.F.R. §§ 4.40 and 4.45, DeLuca, as well as the intention of the rating schedule, to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. The effect of the pain on the Veteran's right knee is contemplated in the currently assigned 10 percent rating based on limitation of motion. Even when taking into account his complaints of pain, there are no findings of flexion limited to 30 degrees or extension limited to 15 degrees, which would warrant a higher rating. Pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, in order to constitute functional loss. Id. at 11; see also 38 C.F.R. § 4.40. The evidence in this case does not show additional function loss or limitation of motion of the right knee due to such factors as pain to more nearly approximate the criteria for a higher disability rating based upon limitation of motion. In addition, no other diagnostic code provides a basis for assignment of an increased rating during the appeal period. Disabilities of the knee and leg are rated under 38 C.F.R. § 4.71a , DCs 5256-5263; however, several of these diagnostic codes are not applicable to the Veteran's service-connected right knee disability. It is not shown that the Veteran's service-connected right knee disability involves ankylosis, dislocation of semilunar cartilage with episodes of locking, pain, and effusion, impairment of the tibia and fibula, or genu recurvatum. Accordingly, consideration of the disability under Diagnostic Codes 5256, 5258, 5262, or 5263, respectively, is not warranted. See 38 C.F.R. § 4.71a. In conclusion, the Board finds that a higher initial rating for service-connected residuals, right knee anterior cruciate ligament reconstruction is not warranted. The preponderance of the evidence is against the Veteran's claim for a higher rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initial Rating for Right Knee Subluxation A March 2009 rating decision granted service connection for subluxation and assigned a 10 percent rating from October 2004. Under Diagnostic Code 5257, impairment of the knee of recurrent subluxation or lateral instability will be evaluated as 10 percent disabling when slight, 20 percent when moderate, and a maximum 30 percent when severe. 38 C.F.R. § 4.71a. Upon VA examination in November 2005, the examiner noted that there was slight recurrent subluxation of the right knee. A report of a December 2010 VA examination reflects that the VA examiner noted that stability tests of the anterior and posterior cruciate ligaments and medial and lateral collateral ligaments within normal limits. Upon VA examination in July 2011, the examiner noted that right knee stability tests were within normal limits for anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus. The VA examiner indicated that the right knee showed no signs of subluxation. The Board finds that a higher initial rating in excess of 10 percent for right knee subluxation is not warranted under DC 5257. 38 C.F.R. § 4.71a. The November 2005 VA examination noted slight subluxation of the knee. The December 2010 and July 2011 VA examination did not show findings of subluxation. Therefore, based on this evidence the Board concludes that subluxation of the right knee is not more than slight. 38 C.F.R. § 4.71a , DC 5257. Accordingly, the criteria for a higher rating based upon moderate subluxation are not met. The preponderance of the evidence is against the Veteran's claim for a higher rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extraschedular considerations 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 claimant's service-connected disability 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 the claimant's disability level and symptomatology, then the claimant'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 the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant'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. Id. In this case, the Board finds that the schedular rating criteria adequate to rate the Veteran's right knee disabilities. The schedular rating criteria pertaining to the Veteran's service-connected knee disabilities assesses the overall severity of right knee impairment and symptomatology. Because the schedular rating criteria are adequate to rate the Veteran's right knee disabilities, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards. For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 38 C.F.R. § 3.321(b)(1). ORDER An initial disability rating in excess of 10 percent for residuals of right knee anterior cruciate ligament reconstruction is denied. An initial disability rating in excess of 10 percent for recurrent subluxation of the right knee is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs