Citation Nr: 1340228 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 08-13 130A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for the residuals of a left knee meniscectomy, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for traumatic arthritis of the left knee, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from May 1976 to April 1977. These matters come before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon. In July 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. These matters were previously before the Board in August 2012 and were remanded for further development. They have now returned to the Board for further appellate consideration. In July 2012 and November 2013, the Veteran's accredited representative stated that the Veteran waived agency of original jurisdiction (AOJ) review of additionally submitted evidence. FINDINGS OF FACT Throughout the period on appeal, the Veteran's left knee disabilities have been manifested by complaints of pain, stiffness, and instability; upon clinical examination, he had no anterior, posterior or varus-valgus laxity, flexion was to at least 70 degrees without pain, and extension was limited to no more than 10 degrees, to include with pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residuals of a left knee meniscectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5263 (2013). 2. The criteria for a rating in excess of 10 percent for traumatic arthritis of the left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.§§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256 - 5263 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in August 2006. VA has a duty to assist the Veteran in the development of the claims. The claims file includes medical records, Social Security Administration (SSA) records, and the statements of the Veteran in support of his claims, to include his testimony at a Board hearing. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. The most recent VA examination was obtained in January 2013. 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 Board finds that the Veteran has been afforded an adequate VA examination. The report includes clinical examination findings, diagnostic testing, and the Veteran's reported symptoms. The report provides findings relevant to the criteria for rating the disabilities at issue. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008), Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). In an April 2013 statement, the Veteran contended that the VA examination had been for his right knee rather than his service-connected left knee. The examination report contains evidence with regard to both knees; thus, it is adequate for rating the left knee. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating musculoskeletal disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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 and 4.45 (2013), see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2013). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. Id. § 4.45. Flexion and Limitation of the Lower extremity DC 5260 provides a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is warranted for leg flexion limited to 45 degrees. A 20 percent evaluation is for leg flexion limited to 30 degrees. A 30 percent evaluation is for leg flexion limited to 15 degrees. DC 5261 provides a noncompensable rating when extension is limited to 5 degrees or less. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. In VAOPGCPREC 9 - 2004 (Sept. 17, 2004), it was held that a claimant who had both limitation of flexion and limitation of extension of the same leg must be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. As such, if the evidence of record reflects compensable loss of both flexion and extension of either leg, the Veteran would be entitled to the combined evaluation under Diagnostic Codes 5260 and 5261, per the combined ratings table in 38 C.F.R. § 4.25. Instability of the knee Instability of the knee and limitation of motion of the knee are two separate disabilities. As such, it is permissible to award separate ratings under both a range of motion code and an instability code (DC 5257), without violating the prohibition on pyramiding. See VAOPGCPREC 23-97. DC 5257 is predicated on instability, rather than limitation of motion, therefore, an analysis under DeLuca does not apply. See Johnson v. Brown, 9 Vet. App. 7 (1996). Diagnostic Code (DC) 5257 Under DC 5257, for recurrent subluxation or lateral instability of the knee, a 10 percent evaluation is warranted for slight knee impairment. A 20 percent evaluation is warranted for moderate knee impairment. A 30 percent evaluation is warranted for severe knee impairment. Words such as "mild", "slight", "moderate", "marked", and "severe" are not defined in the VA Rating Schedule. 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. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's left knee meniscectomy residuals disability is evaluated as 20 percent under DC 5257. (He was assigned a temporary total evaluation from May 17, 2000 to December 1, 2000.) He has a separately assigned evaluation of 10 percent, effective from October 7, 1997, for traumatic arthritis with history of chondromalacia of the left knee under DC 5010. In May 2006, the Veteran requested an increased rating for his left knee disabilities. In rating the Veteran's left knee disabilities, the Board has considered the Veteran's subjective complaints and the objective findings on examinations. The Veteran would be entitled to a higher, maximum, rating of 30 percent under DC 5257 if the evidence reflected that he had severe recurrent subluxation or lateral instability. The evidence of record, as discussed below, is against a finding that the Veteran has had severe recurrent subluxation or lateral instability. A July 2006 VA orthopedic record reflects that upon examination, the Veteran had obvious internal derangement with "not much [anterior/posterior] or [varus-valgus] laxity". It was further noted that his patella tracks well with no laxity. An August 2006 VA examination report reflects that the Veteran continually wears a brace for support due to painless giving out and occasional locking. Upon clinical examination, there was no anterior, posterior or varus-valgus laxity or extraction. There was no lateral movement to the patella in extension or flexion. A November 2006 VA orthopedic record reflects that the Veteran's left knee was stable to varus and valgus. A January 2008 record reflects that the Veteran reported that he had persistent instability and that the Veteran complained that his current brace was too small. A June 2011 VA Form 21-0829 (report of General Information) reflects that during a DRO Informal conference, the Veteran stated that his knee is unstable and that he uses a brace and a cane to ambulate. He also stated that he is only able to walk a quarter of a block, and takes codeine for pain. A July 2011 examination report reflects that the Veteran reported no subluxation or dislocation. He reported locking, stiffness, weakness, swelling, giving way, lack of endurance, fatigability, tenderness, effusion, and pain. He reported flare-ups as often as once a day with the time lasting up to four hours. Upon examination, he had abnormal gait, and tenderness, and guarding of movement. There were no signs of instability, edema, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, and drainage. There was no subluxation. There was no genu recurvatum and locking pain or ankylosis upon examination, although there was crepitus. The medial/lateral collateral ligaments stability test, and the anterior/posterior cruciate ligaments stability test were normal. The medial and lateral meniscus test was abnormal with moderate degree of severity. There was no genu recurvatum, no locking pain, and no ankylosis. An October 2011 VA record reflects mild varus instability. A January 2013 VA examination report reflects normal left anterior stability. Normal posterior stability and medial-lateral stability (valgus-varus). There was no evidence or history of recurrent patellar subluxation/dislocation. The Board notes that the Veteran has reported instability; however, his reports of the sensation of his knee instability are subjective in nature. Joint instability can be objectively diagnosed upon clinical examination. The clinical evidence of record, noted above, is against a finding of more than moderate instability. The Board finds that these objective findings are more probative than the Veteran's subjective complaints made for compensation/rating purposes; thus, a rating in excess of 20 percent under DC 5257 is not warranted. Next, the Board will discuss the Veteran's left knee disability of traumatic arthritis with history of chondromalacia of the left knee, evaluated as 10 percent disabling under DC 5010. Disabilities of traumatic arthritis substantiated by x-ray (DC 5010) are rated under DC 5003 (degenerative arthritis). Under DC 5003, arthritis based on x-ray findings will be rated on limitation of motion, or if noncompensable, assigned a 10 percent rating. A July 2006 VA orthopedics record reflects that the Veteran had a range of motion of 0 - 100 degrees. An August 2006 VA examination report reflects extension to 0 degrees with a "slight springy block and guarding to full extension". Flexion was to 100 degrees. Repetitive motion testing revealed a loss of 10 degrees of flexion and 5 degrees of extension. A November 2006 VA orthopedic record reflects that the Veteran's range of motion was 0 - 135 degrees. The July 2011 examination report reflects that the Veteran had flexion to 90 degrees, with pain beginning at 70 degrees with no additional loss of motion after repetitive use. Extension was to 10 degrees with pain at 10 degrees and no additional degree of limitation of motion after repetitive use. A September 2011 VA record reflects a range of 5 to 110 degrees of motion with pain, but the record does not reflect where pain began. The January 2012 VA examination report reflects that the Veteran had 120 degrees of flexion, with pain beginning at 120 degrees. There was no limitation of extension. Under DC 5261, the Veteran would be entitled to a 10 percent rating if he had leg extension limited to 10 degrees. The evidence, noted above, is against such a finding with the exception of July 2011. The Veteran had extension to 5 degrees in July 2006, extension to 0 degrees in November 2006, and no limitation of extension in January 2012. The July 2011 examination report reflects extension to 10 degrees with pain at 10 degrees. Thus, the Veteran would be entitled, based on the July 2011 report and with consideration of DeLuca factors, to a compensable rating of 10 percent, and no higher, under DC 5261; however, the Veteran is already in receipt of a 10 percent evaluation under DC 5010. Disabilities of traumatic arthritis substantiated by x-ray are based on limitation of motion, or if noncompensable, a 10 percent rating. The Veteran cannot receive a compensable rating under DCs 5003/5010 and DC 5261 as that would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Under DC 5260, the Veteran would be entitled to a 10 percent rating if he had flexion limited to 45 degrees. The evidence, as noted above, is against such a finding. Even with consideration of DeLuca factors, the Veteran does not experience functional loss to a degree that would warrant a compensable rating under DC 5260. The clinical evidence reflects that even with pain and after repetitive use, the Veteran still had 70 degrees of extension. The Board has also considered whether there is any other applicable diagnostic code which would provide a compensable rating for the left knee disabilities, but finds, as discussed below, that there is not. DC 5256 is not for application because the evidence of record is against a finding of ankylosis. The Board acknowledges that the Veteran has contended that he has ankylosis. (See May 2006 VA Form 21-4138); however, ankylosis is immobility and consolidation of a joint due to disease, injury, or surgical procedure. As the Veteran has a range of motion from at least 10 to 70 degrees, the evidence is against a finding of ankylosis; a rating under DC 5256 is not warranted. A rating under DC 5258 is not warranted because the evidence does not reflect dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint. A rating under DC 5259 would not provide the Veteran with a higher rating, as the highest rating under DC 5259 is 10 percent, and the Veteran is already in receipt of 20 percent for his symptoms under DC 5257. He cannot receive an award under both DC 5259 and 5257 for the same symptoms as that would be impermissible pyramiding. A rating under DC 5262 is not warranted because the evidence does not reflect that the Veteran has malunion or nonunion of the tibia and fibula. A rating under DC 5263 is not warranted because the evidence does not show that he has acquired genu recurvatum. (See July 2011 VA examination report.) In addition to the clinical findings, the Board has also considered the Veteran's statements regarding his pain, that he takes medication, to include injections, to help with his symptoms, and that he an antalgic gait, guarding, and uses a cane. However, the Board finds that the Veteran's disabilities' symptoms do not warrant increased ratings as he still has significant function of his left lower extremity and his impairment is contemplated in the currently assigned ratings. The Board has also considered whether a separate rating for a scar of the left knee is warranted but finds that it is not. A November 2006 record reflects a well healed lateral incision scar from the meniscectomy. The July 2011 examination report reflects that the Veteran had a scar located on the lateral aspect of the knee due to surgery. It was noted to be a superficial linear scar 7 cm by .2 cm which was not painful, did not have underlying tissue damage, was not inflamed, did not have edema, keloid formation, or disfigurement, and did not limit motion or function. The January 2013 VA examination report also reflects that the Veteran did not have scars which were painful and/or unstable or of a total area greater than 39 square cm. In sum, the Board finds that the evidence of record is against a finding that higher evaluations are warranted for any period on appeal. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2013), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Extraschedular Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating would be warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The Board has reviewed the evidence of record and finds that it does not show such an exceptional disability picture. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, an extraschedular rating is not warranted. The Veteran's service-connected left knee disabilities are manifested by complaints of pain, stiffness, locking, and instability, which impair his ability to stand and walk for long periods. (In addition to the evidence noted above, the Veteran has stated that he is unable to drive a manual transmission due to his left knee disabilities. ) These signs and symptoms, and their resulting impairment, are contemplated by the rating schedule. The diagnostic codes in the rating schedule corresponding to disabilities of the knee and leg provide disability ratings on the basis of limitation of motion. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture, which is manifested by impairment in standing and walking for long periods. In short, there is nothing exceptional or unusual about the Veteran's left knee disabilities because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Thus, referral for extraschedular consideration is not warranted. Total rating for compensation purposes based on individual unemployability (TDIU) Entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. In addition, exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran's claim for entitlement to TDIU was denied by the RO in the February 2007 rating decision. Although the Veteran initially appealed this denial, he subsequently withdrew this appeal in a statement dated in June 2011. In an August 2012 decision, the Board, based on the Veteran's withdrawal request, dismissed the claim of entitlement to TDIU. The evidence does not reflect that the Veteran is currently seeking entitlement to TDIU; thus, no further action by the Board is required. ORDER Entitlement to an increased rating for the residuals of a left knee meniscectomy, currently evaluated as 20 percent disabling is denied. Entitlement to an increased rating for traumatic arthritis of the left knee, currently evaluated as 10 percent disabling is denied. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs