Citation Nr: 1336284 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-03 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for left knee internal derangement and subpatella chondromalacia. 2. Entitlement to an evaluation in excess of 10 percent for right knee internal derangement with recurrent patella dislocations. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine, on brokerage for the RO in Detroit, Michigan, which retains original jurisdiction. In addition to the paper claims file, the Board has reviewed the record maintained in the Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left knee internal derangement and subpatella chondromalacia was manifested by an antalgic gait, tenderness, abnormal motion, pain, flexion to 140 degrees, and extension to 0 degrees. 2. Throughout the period on appeal, the Veteran's right knee internal derangement with recurrent patella dislocations was manifested by an antalgic gait, tenderness, abnormal motion, pain, flexion to 140 degrees. 3. Throughout the period on appeal, the Veteran's right knee disability was manifested by extension limited to 5 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee internal derangement and subpatella chondromalacia have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-5263 (2013). 2. The criteria for a disability rating in excess of 10 percent for right knee internal derangement with recurrent patella dislocations have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-5260, 5262, 5263 (2013). 3. The criteria for a separate noncompensable rating for limitation of extension of the right knee have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The duty to notify was satisfied in an August 2009 letter to the Veteran. The duty to assist has also been satisfied. The Veteran's pertinent service treatment records and post-service medical records have been secured. The Veteran has not identified any additional outstanding evidence in these matters that could be used to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. The Veteran was afforded an examination by the VA in August 2009. The examination was adequate because it was based on a thorough examination; a description of the Veteran's pertinent medical history, statements and reported history; and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not reported receiving any recent treatment specifically for his knee disabilities and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). II. Increased Rating The Veteran maintains that he is entitled to a disability evaluation greater than 10 percent for each of his service-connected right and left knee disabilities. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be necessary. Hart v. Mansfield, 21 Vet. App. 505 (2007). An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Board's discussion must address the evidence from one year prior to the date of claim through to the present. However, VA is obligated to consider the entire history of the veteran's service-connected disability in addition to the present level of disability. 38 C.F.R. §§ 4.1, 4.2; see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). The Veteran's statements describing his symptoms are considered to be competent evidence. King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed.Cir.2006)). These statements, however, must be viewed in conjunction with the medical evidence as required by the rating criteria. In a December 1978 rating decision, service connection was granted and separate 10 percent ratings assigned for internal derangement of the knees. In a May 2009 claim for increased rating, the Veteran asserted that his service-connected bilateral knee disabilities had worsened, he now had arthritis in both knees causing constant pain, and he lost motion in both knees. An August 2009 VA examination record reflects the Veteran's history of pain in both of his knees. The VA examiner reviewed the Veteran's service treatment records and medical history, which included a right knee arthroscopy in 1997 and a left knee arthroscopy in 2002. The Veteran reported symptoms that included instability, pain, weakness and stiffness, and decreased speed of joint motion. The Veteran reported tenderness in his knees, episodes of dislocation or subluxation occurring one to three times a month, locking episodes occurring one to three times a month, severe flare-ups that occur weekly and cause difficulty sleeping. The Veteran reported being able to stand between 15 and 30 minutes, and walk more than one-quarter mile but under one mile. Examination revealed an antalgic gait but no other evidence of abnormal weight bearing. There was a finding of crepitus, tenderness and abnormal motion in the right knee, and a bony joint enlargement, tenderness and abnormal motion in the left knee. The examiner found no crepitation or instability in either knee. Clicks or snaps were found in both knees, and grinding was found in the left knee. There were well-healed scars from the Veteran's arthroscopy on both knees that were not painful and caused no limits to the Veteran's range of motion. Range of motion testing showed painful left knee motion, with flexion to 140 degrees and full extension. Testing of the right knee also revealed painful motion, with flexion to 140 degrees and extension limited by 5 degrees. Repetitive testing found pain in both knees but no additional limitation after three repetitions. X-rays taken of the knees revealed no evidence of fracture. The examiner noted that the images showed no evidence of an acute osseous injury. Based examination and review of the record, the diagnoses were internal derangement of the right knee status post arthroscopy x2 with meniscal and patellar repair, and internal derangement of the left knee status post arthroscopy with meniscal repair. The Veteran's knee disabilities are each rated at 10 percent under Diagnostic Code (DC) 5257 for instability or subluxation. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability; 20 percent for moderate recurrent subluxation or lateral instability; and 30 percent for severe recurrent subluxation or lateral instability. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just reasons." 38 C.F.R. § 4.6. The Board finds that a higher rating for instability is not warranted under DC 5257 for either knee because the evidence does not suggest that the there is more than slight recurrent subluxation or lateral instability. The Board acknowledges the Veteran's statements maintaining that he experienced episodes of subluxation or dislocation one to three times a month are credible. However, the VA examiner was unable to reproduce the symptoms in either the left or right knee during the August 2009 physical examination and ultimately found no instability in either knee. In this regard, the medical finding of the VA examiner outweighs the Veteran's lay statements. As there is no other evidence of instability, an increased rating is not warranted under DC 5257. There are numerous DC which are potentially applicable to evaluation of a knee disability. Separate ratings may be assigned for knee disability under DC 5257, 5260, and 5261. The symptomatology supporting the evaluations does not overlap; limitation of motion (in distinct planes) and stability are distinct from each other. See generally VAOPGCPREC 23-97, VAOPGCREC 9-98, VAOPGCPREC 9-04. DC 5256 is utilized for evaluation of ankylosis or the functional equivalent; however, as there remains some motion of the knees, this DC is not applicable here. DC 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci; however, no such injury or disability is identified here. The August 2009 VA examination included the Veteran's report of prior surgery for meniscal tears in both knees, but the medical records show no tears. Operative reports from an October 1997 right knee arthroscopic surgery and September 2002 left knee arthroscopic surgery show preoperative diagnoses of torn menisci, but both reports note that the medial menisci were found to be normal during surgery. Right knee surgery conducted in March 1998 was for prepatellar bursitis. On examination in August 2009, the examiner noted no patellar abnormality and no meniscal abnormality in either knee. Again, the Veteran is competent to report symptoms in his knees and any medical diagnoses told to him by his doctors, but he has not established that he possesses the requisite medical expertise to diagnose medically complex conditions of the musculoskeletal system. Torn menisci were pre-operative diagnoses for both knees, but were found to be normal during surgery. The Board finds that separate ratings are not warranted under either DC 5258 or 5259. Finally, while evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. No tibia or fibula impairment is shown here. For limitation of motion, DC 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension is rated under DC 5261. A noncompensable evaluation is assigned for limitation to 5 degrees. A 10 percent evaluation is for assignment when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, DC 5261. The appropriate rating for limitation of motion is determined after consideration of functional loss due to flare-ups, fatigability, incoordination, weakness, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. §§ 4.40, 4.45. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent 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. 38 C.F.R. § 4.71a, DC 5003. Range of motion testing showed painful motion in both knees, with flexion to 140 degrees in both knees and full extension in the left knee. Extension was limited by 5 degrees in the right knee. Repetitive testing found pain in both knees but no additional limitation after three repetitions. At no point during the appeal has objective testing demonstrated actual or functional limitation of flexion in either knee warranting assignment of a separate rating under DC 5260. There has also been no demonstration of actual or functional limitation of extension of the left knee; assignment of a separate rating under DC 5261 is not warranted. Right knee extension is limited by 5 degrees so a separate, noncompensable rating is warranted under DC 5261. However, absent x-ray evidence of arthritis, assignment of a compensable rating under DC 5003 or 5010 is not warranted. The Board has considered whether extraschedular consideration is warranted for either knee disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the Veteran's knee disabilities are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the knee disabilities are primarily manifested by limitation of motion due to pain and instability. Many of the applicable diagnostic codes used to rate the Veteran's disability provide for ratings based on limitation of motion and instability, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the Veteran's disabilities have been fully considered and are contemplated in the rating schedule. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, entitlement to total rating for compensation based on individual unemployability (TDIU) is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). See also Rice v. Shinseki, 22 Vet. App. 447 (2009). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran indicated during the August 2009 VA examination that he was unemployed because he had been laid off and was currently in school for vocational training. He felt he would have more difficulty finding another job due to his knee disabilities, but maintained that his knee disabilities did not impact his prior job as it was mostly a sedentary and supervisory position. The Board finds that the Veteran has not submitted evidence of unemployability. Hence further consideration of TDIU is not warranted. In sum, the preponderance of the evidence is against ratings in excess of 10 percent for the Veteran's service-connected left knee internal derangement and subpatella chondromalacia and right knee internal derangement with recurrent patella dislocations but supports assignment of a separate noncompensable rating for limitation of extension of the right knee. ORDER Entitlement to a disability rating in excess of 10 percent for left knee internal derangement and subpatella chondromalacia is denied. Entitlement to a disability rating in excess of 10 percent for right knee internal derangement with recurrent patella dislocations is denied. Entitlement to a separate noncompensable rating for limitation of extension of the right knee is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs