Citation Nr: 1337074 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-22 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for a right knee disability, rated 20 percent disabling prior to September 4, 2008, 100 percent from then through October 31, 2009, and 30 percent on November 1, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to December 1975. This case arises to the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied a rating in excess of 20 percent for right knee meniscectomy with synovial plica resection. This appeal followed. The right knee underwent a total knee replacement on September 4, 2008. In October 2008, the RO granted a temporary total rating for the right knee replacement surgery and convalescence, effective September 4, 2008, through October 31, 2009. Thereafter, a 30 percent rating was assigned, effective from November 1, 2009. The appeal for higher right knee ratings continued. In November 2011, the Board remanded the case for development. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. In February 2007, the Veteran claimed that a back disorder has arisen due to his right knee. This is referred to the RO for appropriate action. FINDINGS OF FACT 1. For the rating period prior to September 4, 2008, the right knee disability was manifested by lateral instability that is no worse than moderate, painful motion due to arthritis; and right leg weakness due to muscle atrophy. 2. For the rating period beginning on November 1, 2009, the prosthetic right knee disability has been manifested by chronic residuals consisting of weakness in the right lower extremity; instability is not shown. CONCLUSIONS OF LAW 1. For the rating period prior to September 4, 2008, the criteria for a schedular rating greater than 20 percent for right knee lateral instability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013). 2. For the rating period prior to September 4, 2008, the criteria for a separate 10 percent schedular rating for right knee arthritis with painful motion and weakness are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2013). 3. For the rating period beginning on November 1, 2009, the criteria for an increased, 60 percent, schedular rating for right knee prosthesis are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board remanded the case for development in November 2011. The United States Court of Appeals for Veterans Claims (Court) held that when the remand orders of the Board are not complied with the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice-letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements, set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b), apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for service-connection, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA's duty to notify the claimant was satisfied by a letter sent to the claimant in March 2007 with regard to his increased rating claims. The letter addressed all of the notice elements and was sent prior to the June 2007 unfavorable decision by the RO. VA's duty to assist the Veteran in the development of the claim has also been met. The service treatment records (STRs) and all pertinent VA and private treatment records have been obtained and associated with the file. A VA with respect to the issue on appeal was obtained in December 2011. See 38 C.F.R. § 3.159(c) (4). 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 medical evidence obtained is adequate. The medical expert considered the pertinent evidence and the statements of the claimant and provided reasoning for any opinion offered. The Veteran has not asserted that his disability has increased in severity since the November 2011 VA examination. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A (d) (2); 38 C.F.R. § 3.159(c) (4) (i); also see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 addresses painful motion. A portion of § 4.59 states: The intent of the 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). Where an increase in disability is at issue, the present level of disability, rather than remote history, is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Court held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, the facts do demonstrate distinct time periods in which the service-connected right knee disability exhibited diverse symptoms meeting the criteria for different ratings. Therefore, staged ratings are necessary. The initial inquiry is whether a schedular rating greater than 20 percent is warranted for the right knee for any portion of the appeal period prior to September 4, 2008. Prior to September 4, 2008, the right knee was rated 20 percent under Diagnostic Code 5257. Under Diagnostic Code 5257, slight knee disability due to instability or subluxation warrants a 10 percent rating. Moderate knee instability warrants a 20 percent rating and severe instability warrants a 30 percent rating. 38 C.F.R. §§ 4.71, Plate II, § 4.71a, Diagnostic Code 5257 (2013). Under Diagnostic Code 5258, cartilage, semilunar, dislocated, with frequent episodes of locking, pain and effusion into the knee joint warrants a 20 percent rating. Under Diagnostic Code 5259, symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent evaluation. While the right knee could be rated under either Diagnostic Code 5257, 5258, or 5259, assigning more than one rating under Diagnostic Codes 5257, 5258, or 5259 would result in rating the same instability manifestations more than once, which is to be avoided. Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (permitting separate evaluations for separate problems arising from the same injury if they do not constitute the same disability or same manifestation under 38 C.F.R. § 4.14). Limitation of flexion of the leg at the knee (normal being to approximately 140 degrees) will be rated as follows: Flexion limited to 15 degrees is 30 percent. Flexion limited to 30 degrees is 20 percent. Flexion limited to 45 degrees is 10 percent. Flexion greater than 45 degrees is not compensable. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5260 (2013). Limitation of extension of the leg at the knee (normal extension being to approximately 0 degrees) will be rated as follows: Extension limited to 45 degrees is 50 percent. Extension limited to 30 degrees is 40 percent. Extension limited to 20 degrees is 30 percent. Extension limited to 15 degrees is 20 percent. Extension limited to 10 degrees is 10 percent. Extension limited to 5 degrees is 0 percent. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5261 (2013). Where a claimant has arthritis and instability of a knee, separate ratings are authorized under 38 C.F.R. § 4.71a. VAOPGCPREC 23-97. For a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98. GC held that these separate ratings should each take into consideration any additional functional loss due to pain under 38 C.F.R. § 4.40 and DeLuca, and that these separate ratings do not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 9-2004. The remote history of the right knee disability reflects multiple right knee surgeries for meniscus repair, meniscectomy, and arthroscopy. The Veteran requested an increased rating in February 2007. He also claimed that a back disorder has arisen due to his right knee. A May 2, 2007, VA compensation examination report reflects a history of arthroscopic surgery in August 1991 after a lateral buckling injury. He also underwent right synovial plica resection. Pain has increased since then. He took non-steroidal anti-inflammatory medication, used a knee brace, and performed knee strengthening exercises. He underwent right anterior cruciate ligament reconstruction in June 1998. During the examination, the Veteran reportedly could stand for three to eight hours, with only short rest periods. He could walk less than one mile. He reported pain and stiffness, but denied deformity, giving way, instability, weakness, dislocation or subluxation, locking episodes, effusion, flare-ups, or inflammation. He limped when he walked, but the examiner also reported that there was no abnormal weight bearing. Right knee flexion and extension were from 135 to zero degrees. There was no pain or additional loss of motion on repetitive use. Pain began at 130 degrees. There was no loss of bone, inflammatory arthritis, or ankylosis, although the meniscus was surgically absent. The examiner found crepitus, tenderness, grinding, and painful movement. There was no mass behind the knee, clicks or snaps, instability, or patellar abnormality. X-ray studies revealed narrowing of the medial joint space with associated hypertrophic spurring of articular margins consistent with degenerative joint disease, and postsurgical changes related to the anterior cruciate ligament repair. The diagnosis was status post right knee injury. This would have a significant effect on occupational activities. There was a moderate effect on sports, and a mild effect on chores, shopping, exercise, and recreation. There is no effect on feeding, bathing, dressing, toileting, and grooming. A May 9, 2007 VA treatment record notes that the right knee has worsened over recent years. The Veteran reported giving way on activities. He used a brace at work for support. He performed manual labor for K-Mart(r). He used anti-inflammatory medication, which helped reduce swelling, but not pain. His job required manual labor and a lot of lifting and walking, which was strenuous for his knee. There was a positive Lachman's test on the right, but normal on the left (anterior drawer test for serious knee injury performed at 20 degrees of flexion, Dorland's Illustrated Medical Dictionary 1677 (28th ed. 1994)). The right knee was stable to varus and valgus stresses. There was tenderness to palpation throughout the patellofemoral articulation as well as the joint line, more medially than laterally. The right knee fully extended and flexed to about 120 degrees, with pain at the extremes. X-rays revealed tri-compartmental degenerative arthritis. The physician proceeded with a Synvisc(r) steroidal injection for knee pain. A May 22, 2007, VA orthopedic treatment record notes that the Veteran was seen for his third Synvisc injection. The right knee demonstrated mild tenderness to palpation along the lateral margin of the right knee. Varus and valgus stress was negative. There was tenderness to palpation throughout the range of motion. Range of motion of the right knee was to 120 degrees of flexion and to full extension. In a July 2008 substantive appeal, the Veteran argued that he had extreme right knee pains and recent instability in that joint. A July 2008 VA treatment record notes failed therapy, increasing pain, and plans for total knee replacement. The right knee exhibited crepitus, mild tenderness to valgus and varus stressing, positive Lachman's test showing ACL instability in both flexion and knee extension, and 4/5 strength. There was tenderness to palpation over the lateral and medial joint lines, medial greater than lateral. X-rays showed evidence of ACL repair. The assessment was right knee degenerative joint disease and unstable ACL. A total knee replacement was scheduled for September 4, 2008. From the facts above and for the period prior to September 4, 2008, the right knee disability was manifested by moderate lateral instability, painful motion, and mild muscle weakness. X-rays confirmed arthritis. Comparing these manifestations with the rating criteria, the criteria for a schedular rating greater than 20 percent for lateral instability under Diagnostic Code5257 are not more nearly approximated. This is because any lateral instability of the right knee is not shown to be severe. As noted above, where arthritis and instability are present in a knee, separate ratings are authorized. In this case instability and arthritis are present. The arthritis causes painful motion, albeit, not so limiting as to more nearly approximate the criteria of a compensable rating under Diagnostic Code 5260 or 5261. However, because weakness of the right leg is also shown and because the tenets of DeLuca and 38 C.F.R. § 4.59 require at least the minimum compensable rating for the joint, the Board will grant a separate 10 percent rating for painfully limited motion in flexion with weakness under Diagnostic Code 5260. Turning to the next period, that is, September 4, 2008, through October 31, 2009, a temporary total rating is in effect. Because the maximum schedular rating has been granted, there is no need for further consideration of that period. Turning to the most recent rating period, from November 1, 2009, the RO has assigned a 30 percent rating under Diagnostic Code 5055 for the prosthetic right knee joint. Diagnostic Code 5055 provides a total rating for one year following prosthetic replacement of a knee joint. A total rating for one year has been assigned. Following the total rating, a 60 percent rating is to be assigned if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. Diagnostic Code 5055 also provides for rating by analogy under Diagnostic Codes 5256, 5261, or 5262, where there are intermediate degrees of residual weakness, pain, or limitation of motion. The minimum rating to be assigned for total knee replacement is 30 percent in all cases. 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). Thus, the Board must compare the current right knee prosthesis manifestations with Diagnostic Code 5055 and with Diagnostic Codes 5256, 5261, and 5262 to determine the most advantageous rating for the Veteran. The right knee was examined in December 2011. During the examination, the Veteran described knee pains during various work activities, although at no time did the Veteran mention "severe" knee pain. Pain-free range of motion of the right knee was to 110 degrees. Extension was to zero degrees. The right thigh measured 1-inch less in circumference than the left thigh and the Veteran discussed right leg weakness and muscle atrophy. The examiner agreed and, through check marks on the disability benefits questionnaire, indicated that there was right leg atrophy of disuse, excess fatigability, and muscle wasting. Instability of the right knee prosthesis was not found. All surgical scars about the right knee were non-tender and well healed. There was no neurovascular impairment. The examiner noted that the Veteran remained fully employed at manual labor. Comparing the manifestations shown above to the rating criteria of Diagnostic Code 5055, it is clear that chronic weakness in the right lower extremity is shown. This fully satisfies the 60 percent rating criteria under Diagnostic Code 5055, regardless of whether any right knee painful motion is severe. Comparing the manifestations shown to other potentially applicable diagnostic codes, none warrant a 60 percent rating. Because instability of the prosthetic knee joint is not shown, a separate rating for instability is not warranted. After considering all the evidence of record, for the period beginning on November 1, 2009, the evidence favors an increased, 60 percent, schedular rating for the prosthetic right knee joint. Extra-schedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for her service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extra-schedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has stressed that consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (Fed. Cir.2009). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. Moreover, in Thun v Shinseki, 572 F.3d 1366 (Fed. Cir. 2009), the Federal Circuit interpreted and then affirmed the Court's three-part test to determine whether an extra-schedular rating is warranted. The Federal Circuit stressed that (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Id, at 1368. Additionally, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record does not reasonably raise the question of unemployability, nor has the claimant raised this issue. The established schedular criteria have not been shown or alleged to be inadequate to describe the severity and symptoms of the claimant's disability; the case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and, there is no evidence that an extra-schedular disability rating would be in the interest of justice. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). ORDER For the rating period prior to September 4, 2008, a schedular rating greater than 20 percent for right knee lateral instability is denied. For the rating period prior to September 4, 2008, a separate 10 percent schedular rating for right knee painful motion and weakness is granted, subject to the laws and regulations governing payment of monetary benefits. For the rating period beginning on November 1, 2009, an increased, 60 percent, schedular rating for right knee prosthesis is granted, subject to the laws and regulations governing payment of monetary benefits. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs