Citation Nr: 1338730 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 12-04 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating higher than 20 percent for degenerative joint disease of the left knee, status post medial meniscectomy with scar and anteromedial and anterolateral laxity. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active service from July 1973 to July 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which continued the Veteran's rating for his left knee condition at 20 percent. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The Veteran has submitted a statement from a private physician that indicates he was seeking to establish service connection for a back disability. Specifically, the statement states that the need for a 1993 laminectomy may be linked to the Veteran's service connected left knee condition. Thus, the issue of entitlement to secondary service connection for a back disability has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. There is no evidence of any ankylosis, cartilage issues, tibia and fibula impairment, genu recurvatum, giving way, locking, subluxation, or dislocation associated with the Veteran's left knee. 2. The Veteran's degenerative joint disease of the left knee, status post medial meniscectomy with scar and anteromedial and anterolateral laxity is manifested by range of motion from 0 to 140 degrees with complaints of pain on flexion. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent under Diagnostic Code 5257 for degenerative joint disease of the left knee, status post medial meniscectomy with scar and anteromedial and anterolateral laxity, have not been met . 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.71a, Diagnostic Code 5257 (2013). 2. The criteria for separate 10 percent rating, but not higher, under Diagnostic Code 5003-5260 for degenerative joint disease of the left knee, status post medial meniscectomy with scar and anteromedial and anterolateral laxity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 assist a claimant in developing information and evidence necessary to substantiate a claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Here, the Veteran was provided with the relevant notice and information in an August 2010 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Therefore, the Board deems the duty to notify has been met. To satisfy its duty to assist, the VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A. This includes assisting the claimant in obtaining necessary medical examinations and opinions. Id. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. With regards to the private records, the RO received word from Dr. L that the Veteran's treatment records from 1993 to 1994 were destroyed after 10 years and thus unavailable. The Veteran was provided a VA examination which contains a description of the history of his disability at issue, documents and considers the relevant medical facts and principles, and provides a basis in which to properly rate the current state of the Veteran's left knee disability. Thus, the Board deems VA's duty to assist as met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Increased Rating The RO granted service connection for a left knee disability in November 1977 and assigned a 10 percent rating. This was increased in September 1978 to 20 percent under Diagnostic Code (DC) 5257, effective from May 12, 1978. As the 20 percent rating under DC 5257 has been in place for more than 20 years, it is protected. See 38 C.F.R. § 3.951(b). The Veteran asserts that his left knee disability warrants a higher evaluation. Specifically, he reports swelling, tightness, increased pain, difficulty moving while working, difficulty getting out of bed, difficulty bending his knee, and a decrease in the variation and personal enjoyment of recreational activities. Regarding the effect on his job, the Veteran stated that he has to continually take time off of work when his knee hurts. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 4.2. The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, 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. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. Id.; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C.A. § 1155; Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993) When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; 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. Johnson v. Brown, 9 Vet. App. 7 (1996). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Disabilities of the knee are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. The Veteran's left knee disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. He is currently assigned a 20 percent rating under this code, which is warranted for moderate recurrent subluxation or lateral instability. In Diagnostic Codes 5256 through 5263, there are several criteria that qualify a Veteran for a rating higher than 20 percent. Diagnostic Code 5256 covers ankylosis of the knee; however the Veteran does not have a current diagnosis of ankylosis therefore it is inapplicable. In Diagnostic Code 5257, a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability of the knee. As the Veteran has not experienced dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, or had cartilage removed, Diagnostic Codes 5258-5259 are not applicable. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. The Veteran has not suffered any impairment of the tibia and fibula, or from any genu recurvatum, so Diagnostic Codes 5262 and 5263 are not applicable. The Veteran's left knee disability was reclassified at his September 2010 VA examination to include degenerative joint disease based on imaging of the knee. The VA examiner stated that this was a progression of the previous diagnosis. When x-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003/5010 and 5257, respectively. Additionally, the VA General Counsel held that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Disabilities provided for under Diagnostic Code 5010, which covers arthritis due to trauma, are to be rated as degenerative arthritis under 5003. Diagnostic Code 5003 provides for a separate rating for degenerative arthritis when there is compensable limitation of motion, as established by the specific rating code for the joint at issue. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating 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, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 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. As previously stated, the Veteran underwent a VA examination in September 2010 to determine the severity of his left knee disability. The examiner noted that the Veteran's left knee condition, status post medial meniscectomy with anteromedial and anterolateral laxity, existed since 1976 as the result of excessive walking. He noted the Veteran's reported symptoms of stiffness, swelling, lack of endurance, fatigability, tenderness, and pain. The Veteran denied experiencing weakness, heat, redness, giving way, locking, deformity, drainage, effusion, subluxation, and dislocation. The Veteran reported two pain flare ups per week for a period of three days each, with a pain severity level of six (out of ten). He also reported that he self medicated with Tiger Balm, Vicodin, and Advil. The Veteran further reported functional impairment in the form of pain from flexing his left knee when it was swollen as well as difficulty standing longer than 30 minutes and difficulty walking. The examiner also noted that the Veteran possessed a linear scar along the medial left knee, which measured 5.7 cm by .5 cm. The scar was not painful or inflamed, nor did it limit the Veteran's motion or provide functional impairment. It was noted as superficial. Upon examination, the Veteran's posture and gait were normal. The examiner noted the Veteran's use of a left knee brace for ambulation. The left knee itself showed no locking pain, genu recurvatum, crepitus, or ankylosis. The ROM degree was marked as within normal limits, with flexion marked as 0-140, and extension 0. Repetitive ROM tests were possible and there was no additional degree of limitation. The examiner stated that the left knee joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Also, the medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability tests were all within normal limits. Finally, the examiner noted that the x-ray performed showed degenerative changes to the left knee and added degenerative joint disease to his diagnosis. The Veteran submitted an August 2010 statement from a private physician, Dr. L, in support of his claim. Dr. L stated that he performed a laminectomy on the Veteran in 1993, and that it was his opinion that "the gait pattern [the Veteran] has had since he injured his knee may have caused the need for low back surgery" which he performed in 1993. The Veteran also submitted a September 2010 statement from his wife detailing his knee pain. She stated that their active lifestyle diminished roughly ten years ago once the knee started bothering him more often and now they cannot enjoy some things as much because of this. She detailed their self-medication techniques of Advil, Tiger Balm, and use of a knee brace. After careful review of the evidence of record, the Board finds that the Veteran's left knee disorder does not warrant a rating in excess of 20 percent under DC 5257. Specifically, on VA examination in September 2010 the Veteran denied experiencing giving way, subluxation, or dislocation. Upon examination, the medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test, and the medial/lateral meniscus stability tests were all within normal limits. Therefore, as severe recurrent subluxation or lateral instability of the knee has not been demonstrated, a rating in excess of 20 percent under DC 5257 is not warranted. However, the Board finds that a separate 10 percent rating for arthritis of the left knee under DC 5003-5260 is on order. The Veteran's condition has produced subjective complaints of stiffness, swelling, lack of endurance, fatigability, tenderness, and pain. The Veteran reported two pain flare ups per week for a period of three days each, with a pain severity level of six (out of ten). The Veteran further reported functional impairment in the form of pain from flexing his left knee when it was swollen as well as difficulty standing longer than 30 minutes and difficulty walking. These subjective complaints (particularly pain on flexion of the knee), in addition to the findings of degenerative joint disease on x-ray of the knee in September 2010, warrant the assignment of a separate 10 percent rating for arthritis of the left knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59. However, a rating in excess of 10 percent under DC 5003-5260, and/or a separate rating under DC 5261 are not in order. The Veteran had full range of motion of the left knee from 0 to 140 degrees and repetitive ROM tests were possible and there was no additional degree of limitation. The examiner stated that the left knee joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The Veteran had normal gait and posture. Even considering the Veteran's subjective complaints as outlined above, the medical evidence of record does not reflect any additional limitation of motion demonstrated upon repetitive motion that would support a higher evaluation at any time. Although the evidence does show that the Veteran experiences painful motion, it does not result in a higher rating unless it actually results in additional functional loss. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. And to assign two separate ratings for painful motion under DC 5260 and DC 5261 would be pyramiding. See 38 C.F.R. § 4.14. In reaching the above conclusions, the Board has not overlooked the statements by the Veteran and his spouse with regard to the severity of his service-connected left knee. In this regard, the Veteran and his spouse are competent to report on factual matters of which they have firsthand knowledge, e.g., experiencing pain and stiffness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). They are competent to report his current symptomatology as it pertains to his left knee and witnessing his symptoms and the Board finds that the statements by the Veteran and his spouse are credible. With respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have or where these types of findings are not readily observable by a lay person (i.e. range of motion measurements or lateral instability), the Board has accorded greater probative weight to objective medical findings and opinions provided by the VA examination report. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) The Board is sympathetic to the Veteran's plight that he was examined on a good day and thus did not exhibit symptoms, however the examination was wholly adequate and there is not a need for another. Therefore, the Board has considered the reports of the Veteran and his spouse with respect to experiencing symptoms in evaluating his disability rating in this decision. The Board has also considered the applicability of a staged rating, but the record does not show symptoms that lend themselves to a higher evaluation at any point since the year before the Veteran submitted his claim. See Hart, 21 Vet. App. 505 (2007). The Board has also considered the applicability of a separate rating for the linear scar contained on the left knee diagnosis and noted in the September 2010 VA examination report. However, there is no indication of record that the knee scar is painful or causes any functional impairment. The VA examiner found that the scar was not painful or unstable. Thus, a separate rating is not warranted. See 38 C.F.R. § 4.118, DC 7804, 7805. In sum, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's left knee disorder under DC 5257. However, the evidence supports the assignment of a separate 10 percent rating, but not higher, under DC 5003-5260. In reaching this decision, the Board has also considered whether an extraschedular rating is warranted. Bagwell v. Brown, 9 Vet. App. 157 (1996). The Board finds that there is no basis for further action on this question as there is no indication of an exceptional disability picture such that the scheduler evaluation for the Veteran's service-connected left knee disability is inadequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The symptoms associated with the Veteran's knee disability (i.e., stiffness, swelling, lack of endurance, fatigability, tenderness, and pain) are not shown to cause any impairment that is not already contemplated by the rating criteria and they cannot be considered unusual or exceptional. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260, 5257. For these reasons, referral for consideration of an extraschedular rating is not warranted in this case. Finally, the Board has considered the holding of the U.S. Court of Appeals for Veterans Claims in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). To establish a total disability rating based on individual unemployability (TDIU), there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In this case however, the Veteran has maintained his full-time employment during the duration of his claim. He has stated that he has had to miss work, but there is no evidence that this has risen to the level of unemployability. Absent probative evidence of unemployability, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted ORDER Entitlement to a rating higher than 20 percent under Diagnostic Code 5257 for degenerative joint disease of the left knee, status post medial meniscectomy with scar and anteromedial and anterolateral laxity is denied. Entitlement to a separate 10 percent rating, but not higher, under Diagnostic Code 5003-5260 for degenerative joint disease of the left knee, status post medial meniscectomy with scar and anteromedial and anterolateral laxity is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs