Citation Nr: 1337731 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-13 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to a rating higher than 20 percent for right knee chondromalacia with retinacular release before March 10, 2011, and a rating higher than 40 percent from March 10, 2011, based on limitation of extension motion. 2. Entitlement to a rating higher than 10 percent for right knee instability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT THE HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1981 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2009 of a Department of Veterans Affairs (VA) Regional Office (RO) While on appeal, in May 2011, in a decision by a Decision Review Officer the r right knee chondromalacia with retinacular release was increased to 40 percent effective March 10, 2011, based on limitation of extension. The Veteran continued his appeal for a higher rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's file. FINDINGS OF FACT 1. Before March 10, 2011, the right knee disability was manifested by limitation of flexion to 96 degrees and limitation of extension to 14 degrees with no objective evidence of additional functional loss; from March 10, 2011, the right knee disability was manifested by limitation of flexion to 70 degrees and limitation of extension to 35 degrees with no objective evidence of additional functional loss. 2. Throughout the entire appeal period, the right knee disability has been manifested by slight instability. CONCLUSIONS OF LAW 1. Before March 10, 2011, the criteria for a rating higher than 20 percent for a right knee disability based on limitation of motion are not met; from March 10, 2011, the criteria for a rating higher than 40 percent for a right knee disability based on limitation of motion are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 and 5261 (2013). 2. The criteria for a rating higher than 10 percent for right knee instability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. On a claim for increase, the VCAA requires generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim for increase, the RO provided pre-adjudication VCAA notice by letter, dated in March 2009. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (increase in severity of the disability and the effect that worsening has on employment.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded VA examinations in April 2009 and March 2011. As the reports of the VA examinations are based on the Veteran's history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no evidence of a material change in the disability, a reexamination is not warranted. 38 C.F.R. § 3.327. As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Principles Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating the Knee The service-connected right knee disability was rated 20 percent for limitation of extension under Diagnostic Code 5261 before March 10, 2011, and 40 percent from March 10, 2011. A separate rating of 10 percent under Diagnostic Code 5261 was assigned for right knee instability. Limitation of motion of the knee is rated under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension). Under Diagnostic Code 5260, the criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the maximum rating under this Diagnostic Code, 30 percent, is flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, the criterion for a 20 percent rating is extension limited to 15 degrees. The criterion for the next higher rating, 30 percent, is extension limited to 20 degrees. The criterion for the next higher rating, 40 percent, is extension limited to 30 degrees. The criterion for the maximum rating under this Diagnostic Code, 50 percent, is extension limited to 45 degrees. 38 C.F.R. § 4.71a. Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned for limitation of flexion and for extension. VAOPGCPREC 9-04 (September 17, 2004). A separate rating may also be assigned for subluxation or instability of the knee under Diagnostic Code 5257. VAOPGCPREC 23-97 (July 1, 1997). Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the criterion for a 10 percent rating is slight recurrent subluxation or lateral instability of the knee. A 20 percent rating requires moderate recurrent subluxation or lateral instability. A 30 percent rating, the maximum rating for this Diagnostic Code, requires severe recurrent subluxation or lateral instability. Under Diagnostic Code 5258, a dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint is rated 20 percent, which is the maximum rating under this Diagnostic Code. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage is rated 10 percent, which is the maximum under this Diagnostic Code. Rating factors for a disability of the musculoskeletal system include functional loss due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. DeLuca, at 206-07. Also with arthritis or periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Evidence The service treatment records show that in 1982 the Veteran fell while pushing an vehicle and dislocated his right knee. In 1983, he had a patellar retinacular repair. After service in a rating decision in March 2006, the RO granted service-connection for the right knee disability. In January 2009, the Veteran filed the current claim for increase. On VA orthopedic consultation in February 2009, the Veteran complained of knee pain. On physical examination, flexion was to 90 degrees and extension was to 10 degrees. The tests for instability of the knee were negative. On VA examination in April 2009, the Veteran complained of knee pain, instability, and functional loss. The Veteran wore a knee brace and used a cane. He denied locking, effusion, or episodes of dislocation or subluxation. On physical examination, right knee flexion was to 96 degrees and extension was to 14 degrees with objective evidence of pain following repetitive motion, but no additional limitations after repetition. The VA examiner noted an antalgic gait, evidence of abnormal weight bearing, muscle atrophy, bony enlargement, mild dislocation and subluxation, deformity, malalignment, tenderness, and mild functional limitations. The VA examiner stated that right knee instability could not be accurately tested because of guarded movement. The was no locking or grinding. There was crepitus and effusion. On VA orthopedic consultation in August 2009, the examiner reported no effusion. Later that month, the Veteran received a steroid injection to help with pain. On VA examination in March 2011, right knee flexion was to 70 degrees and extension was to 35 degrees with objective evidence of pain following repetitive motion, but no additional limitation after repetition. The VA examiner noted that while observing movements during activities in the examination, such as dressing, undressing, and walking, the Veteran had more than 70 degrees of flexion. The other findings were locking and mild effusion. There was no finding of crepitus, grinding or instability. An MRI showed no meniscal tear and the cruciate and collateral ligaments were intact. In September 2011, the Veteran testified that he was afraid to drive, because his knee might lock. He described knee instability and that he used a brace, an ace bandage, and a cane. He stated that he was currently unemployed, but attending school. He stated that he is able to perform sedentary work. Limitation of Motion A Rating before March 10, 2011 The Veteran asserts that due to pain and limitation of motion the right knee disability was not adequately compensated at 20 percent. In February 2009, flexion was to 90 degrees and extension to 10 degrees, considering functional loss. Limitation of flexion to 90 degrees with pain does not more nearly approximate or equate to flexion limited to 45 degrees, the criterion for a minimum compensable rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Extension to 10 degrees does not more nearly approximate or equate to extension limited to 20 degrees, the criterion for a 30 percent rating, the next higher rating, for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. On VA examination in April 2009, flexion was to 96 degrees and extension was to 14 degrees, considering functional loss. Limitation of flexion to 96 degrees with pain does not more nearly approximate or equate to flexion limited to 45 degrees, the criterion for a minimum compensable rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Extension to 14 degrees does not more nearly approximate or equate to extension limited to 20 degrees, the criterion for a 30 percent rating, the next higher rating, for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. For these reasons, the preponderance of the evidence is against a compensable rating under Diagnostic Code 5260 (limitation of flexion) or a rating higher than 20 percent for limitation of extension under Diagnostic Code 5261 before March 10, 2011. From March 10, 2011 On VA examination in March 2011, right knee flexion was to 70 degrees and extension was to 35 degrees, considering functional loss. Limitation of flexion to 70 degrees with pain does not more nearly approximate or equate to flexion limited to 45 degrees, the criterion for a minimum compensable rating under Diagnostic Code 5260, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38 C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. Extension to 35 degrees does not more nearly approximate or equate to extension limited to 45 degrees, the criterion for a 50 percent rating for limitation of extension under Diagnostic Code 5261, considering functional loss due to pain, weakness, excess fatigability, swelling, deformity, atrophy, or painful movement, under 38C.F.R. §§ 4.40, 4.45, 4.59, and repetitive motion. For these reasons, the preponderance of the evidence is against a compensable rating under Diagnostic Code 5260 or a rating higher than 40 percent under Diagnostic Code 5261 from March 10, 2011. Instability As for instability, the Veteran asserts that he has severe right knee instability. On VA orthopedic consultation in February 2009, the tests for knee ligament and meniscal instability were negative. On VA examination in April 2009, the VA examiner found mild dislocation and subluxation, but no locking or grinding. On VA examination in March 2011, the VA examiner noted some locking and mild effusion. There was no crepitus, grinding, or instability was reported. An MRI showed no meniscal tear and the cruciate and collateral ligaments intact. While the Veteran is competent describe instability, the Board places greater weight on the examination findings than the Veteran's subjective complaints and the objective findings show no more than mild dislocation or subluxation or instability, and the findings do not more nearly approximate or equate to moderate instability, the criterion for the next higher rating under Diagnostic Code 5257. And the current ratings are more than the minimum compensable rating for the knee, applying 38 .F.R. § 4.59. And staged rating during the period of the appeal is not warranted. As the preponderance of the evidence is against the claim for a rating higher than 10 percent for instability, the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). And staged ratings are not warranted. As for other potentially applicable Diagnostic Codes, under Diagnostic Code 5258, a 20 percent rating is assigned for a dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Although lay and medical evidence of record indicates the right knee is symptomatic, the symptoms have been rated under Diagnostic Codes 5261 and 5257, including painful motion and to rate the same symptoms under Diagnostic Code 5258 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14. Stated another way, the Veteran's symptoms of painful motion, limited extension, instability, and locking have been rated under Diagnostic Codes 5261 and 5257. Thus, a separate rating under Diagnostic Code 5258 would be duplicative or overlapping the other ratings, which is not permissible under 38 C.F.R. § 4.14. Also, while the Veteran would be entitled to the higher of the two ratings, the rating for the knee under Diagnostic Codes 5261 and 5257, at this junction, would be 50 percent and under Diagnostic Code 5258 only 20 percent. Therefore, Diagnostic Code 5258 is not applicable. Under Diagnostic Code 5259 symptomatic removal of semilunar cartilage is rated 10 percent, which is the maximum under this Diagnostic Code. As VA examination reports dated in April 2009 and March 2011 show that the Veteran's semilunar cartilage has not been removed, Diagnostic Code 5259 is not applicable. There are no other applicable Diagnostic Codes for the knee. Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria under Diagnostic Codes 5261 and 5257 reasonably describe the disability levels and the Veteran's symptomatology, including pain, functional loss, limitation of motion, and instability. In other words, the Veteran does not experience any symptomatology not already encompassed by the Rating Schedule. Therefore referral for extraschedular consideration for the service-connected right disability is not required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability Although the Veteran is not currently employed, the Veteran did not raise and the record does not reasonably raised the claim for a total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). ORDER Before March 10, 2011, a rating higher than 20 percent for a right knee disability based on limitation of extension is denied; from March 10, 2011, a rating higher than 40 percent for a knee disability based on limitation of extension is denied. A disability rating higher than 10 percent for right knee instability is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs