Citation Nr: 1340177	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO. 12-05 709	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an increased rating in excess of 20 percent for status post anterior cruciate ligament graft for missing anterior cruciate ligament, left knee with degenerative joint disease and residual arthroscopic surgical scars, status post anterior cruciate ligament graft (left knee disability).


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel




INTRODUCTION

The Veteran served on active duty from October 1978 to January 1979.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied an increased rating in excess of 20 percent for a service-connected left knee disability.

The Veteran has been granted temporary 100 percent evaluations based on surgical or other treatment necessitating convalescence for his left knee disability for the periods from October 17, 2008, to November 31, 2008, and March 11, 2010, to April 30, 2010. This decision does not in any way affect the temporary 100 percent ratings previously granted.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.


FINDINGS OF FACT

1. Throughout the appellate period, the Veteran's left knee disability is manifested by pain, subjective giving way, weakness, locking, flare-ups, tenderness, and swelling, but not by objective evidence of ankylosis, flexion limited to 15 degrees or less, extension limited to 20 degrees or more, dislocated semilunar cartilage with frequent locking, pain or effusion in the joint, malunion of the tibia or fibula with marked knee or ankle disability, or genu recurvatum.

2. From November 30, 2009, to March 10, 2010, the Veteran's left knee disability was manifested by positive anterior drawer signs, positive Lachman signs, and subjective instability and giving way.

3. From March 11, 2010 forward, the Veteran's left knee disability was manifested by negative anterior and posterior drawer signs, negative Lachman signs, no laxity of the lateral or medial collateral ligaments, no subluxation, and no instability.

4. The Veteran's left knee disability does not present an exceptional or unusual disability picture.

5. Evidence of unemployability based on the Veteran's service-connected left knee disability has not been submitted.


CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 20 percent for a service-connected left knee disability have not been met at any time during the appeal. 38 U.S.C.A. 
§§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2013).

2. The criteria for a separate, staged rating of 10 percent, but no higher, from November 30, 2009, to March 10, 2010, for slight recurrent subluxation or lateral instability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2013); VAOPGCPREC 23-97.

3. The criteria for a compensable rating for recurrent subluxation or lateral instability from March 11, 2010 forward have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257 (2013).

	
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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA issued a VCAA letter in February 2010, prior to the initial unfavorable adjudication in June 2010. This letter advised the Veteran of what evidence was necessary to substantiate his claim, the evidence VA would obtain, the evidence the Veteran must provide, and how disability rating and effective date are determined. As the letter contained all of the necessary information listed above, the Board finds VA has met its duty to notify.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. Appropriate efforts were made to obtain all records identified and authorized for release by the Veteran, and all obtained records (both private and VA) have been included in the case file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in February 2009, May 2010, and October 2010. The examinations were adequate because the examiners considered the Veteran's contentions, reviewed the claims file, and conducted a thorough medical examination of the Veteran. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's claim for an increased rating in excess of 20 percent for a service-connected left knee disability. See Rodriguez-Nieves v. Peak, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.

II. Merits of the Claim

The Veteran contends that he is entitled to an increased rating for his service-connected left knee disability. The Board finds that the preponderance of the evidence is against a finding that an increased rating in excess of 20 percent is warranted on either a schedular or an extraschedular basis. Further, the evidence of record does not give rise to an inferred claim for a total disability rating based on individual unemployability (TDIU). 

The Board does find that, based on the objective medical evidence of record, a separate, staged rating of 10 percent for slight recurrent subluxation or lateral instability from November 30, 2009 to March 10, 2009 is warranted.

A. Schedular Ratings

Disability evaluations are determined by the application of 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

The Veteran's left knee disability is rated under Diagnostic Code 5260 for limitation of flexion of the leg. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260 provides for the assignment of a 20 percent rating when flexion of the leg is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A rating of 30 percent, the highest rating under this Diagnostic Code, is appropriate when leg flexion is limited to 15 degrees. Id.

The Board finds no objective evidence that would warrant a rating greater than 20 percent for the Veteran's left knee disability based on flexion or extension. The February 2009 and October 2010 examiners both noted that the Veteran had flexion to 140 degrees and extension to 0 degrees, which is a full range of motion. See 38 C.F.R. § 4.71a, Plate II. Both examiners noted that there was no indication of pain, weakness, or fatigue upon repetitive motion, nor was the Veteran's range of motion further limited after repetitive movement. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. 202. The May 2010 examiner noted flexion to 130 degrees and extension to 0 degrees, with pain at 120 degrees flexion. The examiner also noted that range of motion was not reduced after repetitive testing. 

Private medical records corroborate the VA examination findings. Records from October 2009 indicate ranges of motion of 120 degrees flexion and 0 degrees extension, and 125 degrees of flexion and 0 degrees extension. March 2010 records show ranges of motion of 140 degrees flexion and 0 degrees extension, 80 degrees flexion and 0 degrees flexion, and 110 degrees flexion and 0 degrees extension. The latter two measurements were taken 4 days and 14 days, respectively, after the Veteran's March 11, 2010, left knee surgery. Records from April 2010 reflect a range of motion of 140 degrees flexion and 0 degrees extension. Finally, May 2010 records show a range of motion of 140 degrees flexion and 0 degrees extension. None of the private records indicate that repetitive testing was performed. These findings do not support a higher rating based on flexion or extension.

The Veteran has reported symptoms such as weakness, instability, pain on motion, stiffness, locking, swelling, tenderness, and an inability to bend his knee past 85 degrees during flare-ups, all of which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that the Veteran's statements are outweighed by the objective medical evidence of record. All three examiners arrived at the same or similar measurements with respect to the Veteran's range of motion, and there was no change in the range of motion after repetitive testing. The private medical records also reflect a full range of motion, with the exception of the two measurements taken immediately after the March 11, 2010, left knee surgery. Further, the Veteran's statement regarding his ability to bend his knee, even when analyzed in isolation, only establishes a limitation of flexion to 85 degrees, which is insufficient for a higher rating of 30 percent under Diagnostic Code 5260. As there is no medical evidence indicating limitation of flexion to 15 degrees or less, a 30 percent rating is not warranted under Diagnostic Code 5260. 38 C.F.R. § 4.71a, Plate II.

Turning to other potentially applicable Diagnostic Codes, separate ratings may be assigned for compensable limitation of flexion and compensable recurrent subluxation or lateral instability. See VAOPGCPREC 23-97. A 10 percent rating is appropriate when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation when there is severe knee impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Subluxation of the patella is "incomplete or partial dislocation of the knee cap." Rykhus v. Brown, 6 Vet. App. 354, 358 (1993) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1241, 1599 (27th ed. 1988)). The Board observes that the words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Further, as stated previously, staged ratings may be assigned for separate periods of time based on the facts found. Fenderson, 12 Vet. App. at 126-27; Hart, 21 Vet. App. 505.

The February 2009 VA examiner found that the Veteran had a positive anterior drawer sign and noted that the Veteran complained of instability in his knee which caused him to fall. Private medical records from October 22, 2009, March 4, 2010, and March 11, 2010, also note positive anterior drawer and Lachman signs, indicative of instability. On March 11, 2010, the Veteran had left knee surgery to repair his anterior cruciate ligament. Following that surgery, private medical records from March 25, 2010, and April and May 2010 indicated negative anterior drawer and Lachman signs. During a May 2010 VA examination, the examiner found that the anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus were all within normal limits after applying a stability test, although the Veteran complained of left knee instability and giving way. The October 2010 VA examiner also found no ligamentous laxity of the lateral or medial collateral ligaments following lateral and medial stress tests, and noted that the Veteran reported no problems with instability in his knee. 

The Veteran has also submitted several lay statements concerning his left knee disability. The Veteran complained of continuing knee instability in an April 2010 statement. In his June 2011 notice of disagreement, the Veteran reported left knee instability when walking. Finally, in his March 2012 substantive appeal, he reported severe left knee instability. The Veteran is competent to report these symptoms as they are lay observable. Jandreau, 492 F.3d 1372. 

Based on the lay and medical evidence of record, the Board finds that a separate, staged rating of 10 percent, but no higher, for slight recurrent subluxation or lateral instability is warranted from November 30, 2009, (the date of the Veteran's claim) to March 10, 2010, (the effective date of his temporary total evaluation based on his surgery). The Veteran complained of difficulty walking due to instability in his knee, and noted that it would give out weekly. The Veteran also noted that his knee instability inhibited his ability to walk long distances, stand for long periods of time, and limited some of the recreational and work activities he could engage in. These complaints were objectively confirmed on examination.  Based on this evidence, the Veteran's disability picture more nearly approximates a 10 percent rating for slight lateral instability of the left knee under Diagnostic Code 5727.

Turning to the issue of staging, the objective medical evidence establishes slight lateral instability as of the date of the Veteran's claim for an increased rating on November 30, 2009. Objective medical signs of lateral instability were first noted during the February 2009 VA examination and continued until the Veteran's March 2010 left knee surgery. There is no medical evidence of record indicating lateral instability was at any time not present after February 2009. However, immediately after the March 11, 2010 surgery, there are no further objective medical signs of any ligamentous laxity or lateral instability in the Veteran's knee. While the Veteran has continued to report knee instability and giving way and is competent to do so, the Veteran is not competent to state that the instability is due specifically to lateral instability in his knee, as opposed to pain or other symptoms, as a finding of lateral instability is one that requires medical expertise. Id. Since after March 11, 2010, the preponderance of the evidence is against a 10 percent rating for slight recurrent subluxation or lateral instability, a noncompensable rating for slight lateral instability under Diagnostic Code 5257 is warranted from that date forward.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. For the purposes of Diagnostic Code 5256, ankylosis is "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing SAUNDERS ENCYCLOPEDIA AND DICTIONARY OF MEDICINE, NURSING, AND ALLIED HEALTH 68 (4th ed. 1987)). As the Veteran is able to move his left knee, it is clearly not ankylosed. Further, the May 2010 examiner specifically found that ankylosis was not present. Objective measurements of his left knee range of motion, as stated above, show that the Veteran does not have extension of the knee limited to 20 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5261. There are no reports or evidence of dislocated or removed semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. There is also no medical evidence indicating the presence of either nonunion or malunion of the tibia and fibula, or genu recurvatum, and the May 2010 VA examiner noted these were not present. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. 

In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows that the Veteran has, at different times, complained of pain, weakness, stiffness, tenderness, locking, swelling, instability, and complained of flare-ups that prevent him from standing for long periods and bending his knee past 85 degrees, all of which the Veteran is competent to report. Jandreau, 492 F.3d 1372. However, during the October 2010 VA examination the Veteran specifically denied having locking, swelling, or flare-ups, which undermines the credibility of his account of his symptoms. Additionally, all three VA examiners found that upon repetitive testing there was no additional functional loss due to pain, weakness, fatigue, or incoordination. All three examiners took into account the Veteran's accounts of his symptoms. The Board finds that the VA medical opinions outweigh the Veteran's statements regarding additional functional loss due to pain, weakness, or fatigue. 38 C.F.R. §§ 4.40, 4.45. Additionally, the Veteran's complaints of pain on motion are fully contemplated by his current rating. 38 C.F.R. § 4.59.

All potentially applicable codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating in excess of 20 percent based on limitation of flexion for the Veteran's left knee disability. As such, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied. 38 C.F.R. § 4.3. For these reasons, the claim the claim for an increased rating for limitation of leg flexion is denied. However, based on the medical and lay evidence, the Board finds a separate, staged rating for slight left knee lateral instability from November 30, 2009, to March 10, 2010, is warranted.

B. Extraschedular Ratings

Consideration has also been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. 

If not, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture, including such factors as marked interference with employment and frequent periods of hospitalization, exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination on whether justice requires an extraschedular rating. Id.

Here, the rating schedule is adequate as it fully contemplates the symptoms of the Veteran's left knee disability, specifically swelling, tenderness, subjective instability and giving way, some limited flexion, and pain. Therefore, extraschedular evaluation is not appropriate, and need not be further discussed. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111.

C. TDIU

The Board notes that a claim for a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) has not been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (stating that when evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). Here, the Veteran has been employed throughout the period on appeal. The Veteran has expressed concern about the effect his left knee disability has on his job. However, this type of effect is contemplated by his current level of compensation, and he has not expressed an inability to work. As such, a claim for a TDIU is not raised by the evidence of record and need not be addressed at this time.











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ORDER

Entitlement to an increased rating in excess of 20 percent for limitation of leg flexion for the service-connected left knee disability is denied.

A separate, staged rating of 10 percent, but no higher, from November 30, 2009, to March 10, 2010, for slight lateral instability of the left knee is granted, subject to the laws and regulations governing the payment of monetary awards.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs