Citation Nr: 1336914	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  07-13 231A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Houston, Texas


THE ISSUE

Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

G. Jackson, Counsel




INTRODUCTION

The Veteran had active service from November 1975 to February 1993.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the RO. In that decision, the RO denied a rating in excess of 10 percent for the service-connected degenerative arthritis of the left knee. The Board remanded the claim in July 2013 for additional development. That development has been completed and the case has been returned to the Board for adjudication.

The Veteran's appeal originally included the issue of service connection for carpal tunnel syndrome of the right wrist. During the pendency of the appeal, the RO, in an August 2013 decision, granted service connection for carpal tunnel syndrome of the right wrist and assigned a 10 percent disability rating effective on August 2, 2000. Therefore, his appeal concerning the issue of service connection for carpal tunnel syndrome of the right wrist has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

The Board notes that, in addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files associated with the Veteran's claim. A review of the documents in these electronic files reveal that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDING OF FACT

The Veteran has limitation of motion of the left knee that is noncompensable under diagnostic codes contemplating range of motion of the knee. 




CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for degenerative arthritis of the left knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a Diagnostic Code (DC) 5003 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in an April 2009 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating for degenerative arthritis of the left knee, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. Additionally, the letter set forth applicable criteria for rating the left knee. Hence, the April 2009 letter meets the content of notice requirements as well as the timing of notice requirement. Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include private treatment records, VA treatment records and examination reports.    

Further, the Board is aware that the issue was remanded by the Board in July 2013.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order).  

In pertinent part, that remand requested that the RO obtain outstanding records of treatment and schedule the Veteran for additional examination to evaluate the severity of his left knee disability. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Boards remand order).

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12Vet. App 119 (1999). Here the disabilities have not significantly changed and uniform evaluations are warranted.

The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7. 

The rating for the Veteran's degenerative arthritis of the left knee has been assigned pursuant to diagnostic code (DC) 5003. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating is for application. In the absence of limitation of motion, a 10 percent rating is assigned for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.

A 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent contemplates limitation of flexion to 30 degrees. A rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. 

Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a.

The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Additionally, a separate evaluation may also be assigned for instability. See 38 C.F.R. § 4.71a, DC 5257. 




Analysis

In this case, the Board concludes that the symptoms of the Veteran's degenerative arthritis of the left knee do not warrant assignment of a rating in excess of 10 percent.

The April 2009 report of VA fee-basis examination reflects the Veteran's complaint of constant pain in the left knee described as a crushing, burning, aching, sharp and cramping pain. He rated the pain level as 8 out of 10. The pain was elicited by physical activity and stress and relieved by rest, Celebrex, Tylenol and Tramadol. At the time of pain, he could function with medication. Additionally, he complained of the following left knee symptoms: weakness, stiffness, swelling, heat, giving way, lack of endurance, locking and fatigability. He did not have redness and dislocation. The noted medication helped decrease the pain together with steroid shots to the joint. He denied any hospitalization or surgery for the left knee. He reported that he had not had any joint replacement. He complained of the following functional impairments: hard to walk, stand and climb stairs.

Objectively, there were no signs of edema, effusion, weakness, redness, heat, guarding of movement and subluxation. There was no "locking" pain, genu recurvatum or crepitus. He had full extension and flexion limited to 110 degrees (with pain occurring at 100 degrees). Left knee joint function was additionally limited by pain (major functional impact) and lack of endurance after repetitive use and as noted resulted in a loss of 10 degrees of motion. Left knee joint function was not additionally limited by fatigue, weakness and incoordination after repetitive use. Anterior and posterior cruciate ligaments stability test, medial and lateral collateral ligaments stability test and medial and lateral meniscus test of the left knee were all within normal limits. The effect of his left knee disability on his occupation and activities of daily living were difficulty performing his job as custodian and limited physical activities.

An April 2009 private MRI report of the left knee showed a horizontal tear through the posterior horn and body of the medial meniscus, an oblique tear through the posterior horn of the lateral meniscus, a large joint effusion, a grade II strain of the tibial collateral ligament and moderate joint space narrowing of the medial compartment of the femorotibial joint with extensive subchondral microtrabecular edema of the medial femoral condyle and adjacent medial tibial plateau.

A follow-up April 2009 private treatment record reflects that the Veteran was doing physical therapy; however, he still complained of worsening pain. Objectively, in pertinent part, he had normal flexion, extension, medial rotation, lateral rotation with no pain or crepitus. Stability testing showed no laxity, subluxation or ligamentous instability. Anterior drawer sign, posterior drawer sign, pivot shift test, Lachman test, reverse Lachman test, McMurray's test, Apley's compression test, bounce home test and Steinman's displacement test were all negative.

A July 2009 operative report reflects that the Veteran underwent left knee arthroscopically assisted partial medial and lateral meniscectomy and medial femoral condyle ablation and chondroplasty for left knee medial and lateral meniscal tear. A November 2009 VA neurology note reflects, in pertinent part, a past surgical history of "left knee (partial replacement)."

The August 2013 report of VA examination reflects the Veteran's complaint of pain, stiffness, poor weight bearing and difficulty with job functions as a result of his left knee disability. Objectively, he had full extension of the left knee (with no evidence of painful motion) and flexion limited to 120 degrees (with evidence of painful motion beginning at 120 degrees). He had no additional limitation of motion on repetitive use. However, he did demonstrate pain on movement, interference with sitting, standing and/or weight bearing and pain on repetitive use. Otherwise he did not have weakened movement, excess fatigability, incoordination, swelling, deformity, atrophy of disuse, instability of station or disturbance of locomotion on repetitive use. Joint stability tests, Lachman, posterior drawer and medial-lateral, were all normal. There was no evidence or history of recurrent patellar subluxation or dislocation. It was noted that the Veteran had undergone left knee surgery in the past but no residuals were documented.  

Based on the above, the Board does not find that the criteria have been met for a rating in excess of 10 percent for degenerative arthritis of the left knee. In this case, a 10 percent rating was correctly assigned because the Veteran has arthritis of the left knee and some limitation of motion that is noncompensable under other appropriate diagnostic codes. 38 C.F.R. § 4.71a, DC 5003. In this regard, the evidence, as reported above, does not reflect that the Veteran's left knee disability has resulted in limitation of flexion to 30 degrees. Rather, the evidence shows that at worse, he had flexion limited to 110 degrees, with pain occurring at 100 degrees (April 2009 report of VA fee-basis examination). Therefore, a rating in excess of 10 percent based on limitation of flexion is not warranted. 38 C.F.R. § 4.71a, DC 5260. Further, he has no limitation of extension of the left knee, thus a rating in excess of 10 percent based on limitation of extension is not warranted. 38 C.F.R. § 4.71a, DC 5261. Ankylosis, semilunar cartilage (dislocation) or impairment of the tibia and fibula are not demonstrated; thus, a rating in excess of 10 percent under those diagnostic codes is not warranted. 38 C.F.R. § 4.71a, DC 5256, 5258, 5262. Finally, because he has some limitation of motion (i.e., there is not an absence of limitation of motion), a rating in excess of 10 percent under DC 5003 is not warranted. The Board is aware that separate ratings for limitation of motion and instability may be assigned. See VAOPGCPREC 23-97; see also VAOPGCPREC 9-98. However, given that instability of the left knee is not objectively demonstrated, a separate rating for such is not warranted. 38 C.F.R. § 4.71a, DC 5257. 

Additionally, despite notation of past surgical history of "left knee (partial replacement)" in the November 2009 VA neurology note, there is no documentation of any left knee prosthetic replacement. To that end, the Board is aware that the Veteran underwent left knee arthroscopically assisted partial medial and lateral meniscectomy and medial femoral condyle ablation and chondroplasty for left knee medial and lateral meniscal tear in July 2009. However, those surgical procedures do not involve prosthetic replacement of the knee joint. Accordingly, a rating in excess of 10 percent is not warranted under DC 5055 which contemplates knee replacement (prosthesis). 38 C.F.R. § 4.71a

The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his degenerative arthritis of the left knee does not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is competent to report that he has pain, stiffness, poor weight bearing and difficulty with job functions. However, the examinations disclosing that he does not have the requisite limitation of motion for assignment of an increased rating, prepared by skilled professionals, are far more credible and probative than his assertions in support of a claim for benefits. The Board also notes that the Veteran was provided an opportunity to submit additional evidence, but did not.  

For all the foregoing reasons, the Board finds that a rating in excess of 10 percent for the degenerative arthritis of the left knee is not warranted at any time pertinent to this appeal.  

The above determination is based on application of pertinent provisions of VA's rating schedule.  Additionally, the Board finds that at no point has the left knee disability been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis.  See 38 C.F.R. § 3.321.

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms and effects of the Veteran's degenerative arthritis of the left knee is fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's degenerative arthritis of the left knee is contemplated by the 10 percent rating, which take account of both the individual symptoms and the overall impairment caused by the degenerative arthritis of the left knee. Thus, 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. In any event, the above evidence reflects that the effects of the degenerative arthritis of the left knee on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned 10 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for the degenerative arthritis of the left knee is not warranted. 38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to a rating in excess of 10 percent for degenerative arthritis of the left knee is denied.



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs