Citation Nr: 1340468	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  09-05 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for a left knee disability, status post total knee replacement, from April 1, 2011, to the present.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

T. Adams, Counsel



INTRODUCTION

The Veteran had active military service from January 1965 to October 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In a June 2013 decision, the Board denied the Veteran's claim for an increased disability rating for torn medial and lateral meniscus in the left knee, evaluated as 10 percent disabling from November 30, 2006 to February 4, 2010 and Remanded the claim for a rating in excess of 30 percent for service-connected torn medial and lateral meniscus in the left knee from April 1, 2011, for further development.

The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case.


FINDING OF FACT

For the period from April 1, 2011 to the present, the competent medical evidence of record shows that range of motion of the Veteran's left knee status post total knee replacement has been manifested by normal extension and no less than 85 degrees flexion, with pain at 60 degrees.


CONCLUSION OF LAW

For the period from April 1, 2011 to the present, the criteria for a rating in excess of 30 percent for status post total left knee replacement have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Codes 5055, 5256, 5261-62 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Before addressing the merits of the remaining issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in November 2006 of the criteria for establishing an increased rating, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates.  This letter accordingly addressed all notice elements and predated the initial adjudication.  After the Board's 2013 Remand, the claim for an increased rating was readjudicated.  If there were any defect in the notice prior to the 2013 Board Remand, the notice provided by that Board decision and the following readjudication process cured any prior defect.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  No further action to provide notice is required.

VA also has a duty to assist the veteran in the development of a claim.  This includes assisting the veteran in procuring service treatment records (STRs) and other relevant treatment records and providing a VA examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Here, VA obtained the Veteran's STRs as well as pertinent outpatient treatment records, including those obtained pursuant to the Board's 2013 Remand.  The file also contains statements and contentions made by the Veteran and his representative.  No outstanding evidence has been identified that has not otherwise been obtained.

Pursuant to the Board's 2013 Remand, a VA Disability Benefits Questionnaire (DBQ) knee and lower leg conditions examination and opinion were obtained in July 2013.  The VA examination reports were quite comprehensive and adequately addressed the Veteran's left knee complaints.

The Board notes that the Veteran's VA examination from June 2013 is over five months old.  The mere passage of time since that examination is not reason enough, alone, to require reexamination.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's left knee disability since the most recent examination.  The Veteran has not argued the contrary.  Thus, the Board finds that remand for an additional VA examination is not required in this instance.

Accordingly, the Board concludes that during the administrative appeal process, the Veteran was provided the information necessary such that the purposes of the notification have been met.  Moreover, there has been substantial compliance with the June 2013 Board Remand instructions as the July 2013 VA DBQ examination was developed, additional VA treatment records were obtained; therefore, no further remand is required.  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where Board's remand instructions were substantially complied with).

Neither the Veteran nor his representative throughout the course of this appeal has made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained.  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 claim adjudicated herein.  Therefore, in view of the foregoing, the Board will proceed with appellate review.

II.  Increased Rating

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013).  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran.  See 38 C.F.R. § 4.3 (2013). 

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this case, the evidence of record does not establish additional, distinct time periods in which the issue on appeal resulted in symptoms that would warrant staged ratings.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2013).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).
Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination.  See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59.  See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion.

Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the 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.  Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

The Secretary shall give the benefit of the doubt to the veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period 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 instant claim.

During the period on appeal, the RO assigned a 30 percent rating for the Veteran's left knee disability, status post total knee replacement, effective April 1, 2011, under Diagnostic Code 5055.  Under Diagnostic Code 5055 for total knee replacement, a 100 percent rating is assigned for one year following the implantation of the prosthesis.  A 60 percent rating is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity.  For a prosthetic replacement of the knee joint with intermediate degrees of residual weakness, pain, or limitation of motion, the disability is rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5261 (limitation of extension), or 5262 (impairment of the tibia and fibula).  The minimum rating for a prosthetic replacement of the knee joint is 30 percent.

The Board notes that, as indicated in the preceding paragraph, the provisions of Diagnostic Code 5055 for total knee replacement do not provide for consideration of Diagnostic Code 5257 (recurrent subluxation or instability), 5260 (limitation of flexion), or any other Diagnostic Code not specifically referenced therein.

Turning to the merits of the claim, VA outpatient treatment records include an April 2011 report, which reflects the Veteran complaints of some medial-sided knee pain and catching and that the knee sometimes felt loose.  On examination, the incision on the left knee was well-healed and range of motion was from zero to 125 degrees.  There was some laxity in varus/valgus both in full extension and flexion.  X-ray examination of the left knee revealed a left total knee arthroplasty in anatomic alignment without periprosthetic fracture or lucency.  The assessment was status post patelloplasty.  In August 2011, an X-ray examination was negative for evidence of acute fracture, subluxation, soft tissue swelling, or joint effusions.  The impression was status post left knee arthroplasty in anatomic alignment, with no evidence of hardware failure or loosening.  There was a bump on the lateral side of the left knee which the physician felt may be his lateral femoral condyle.  However, it was not felt that surgical intervention would decrease his pain.  Instead, a patella knee brace was issued.  On examination, the left knee was stable to valgus stress, but opened up a little to varus stress.  Range of motion was from zero to nearly 125 degrees.  There were some loose bodies medially on X-ray, otherwise the implants were stable.  The assessment was status post left total knee arthroplasty and patelloplasty.  In September 2011, the Veteran had continued complaints of left knee pain over the medial aspect of the knee and crepitus with extension and flexion.  He used an over-the-counter brace, but was able to continue walking without the use of an assistive device.  On examination, while there was crepitus over the patella, the remaining portion of the patella tracked well.  The knee was stable to anterior and posterior stress and valgus stress and opened slightly with varus stress, but was not grossly unstable.  Range of motion was described as excellent from zero to 125 degrees.  A brace was reordered.

By March 2012, the Veteran's left knee pain was 50 percent resolved and he had no significant left knee complaints.  He was fairly pleased with the outcome of the procedure, but sought a little more pain relief.  Examination of the left knee revealed that the knee was stable to valgus and varus stress with range of motion from zero to 105 degrees.  There was no effusion.  In July 2012, X-ray examination of the left knee revealed that it was unchanged since August 2011.

Reports dated in May 2013 reflect that the Veteran had no changes in his baseline left knee symptomatology.  He complained of a burning sensation along the lateral aspect of the left knee with pain on the medial aspect.  Occasionally, he felt a catching and buckling sensation, but denied any swelling, redness, fever, chills, or other constitutional symptoms.  On examination, there was well-healed scar on the left knee.  There was clicking with flexion and extension, but there was no warmth, redness, or effusion.  Range of motion was from zero to 112 degrees without any associated pain.  There was some mild tenderness to palpation of the medial aspect, but his symptomatology remained unchanged.  A May 2013 X-ray examination reflected a stable appearing left knee without findings to suggest hardware failure or loosening.

Pursuant to the Board's June 2013 remand, the Veteran underwent a VA knee and lower leg conditions DBQ examination at which time the Veteran presented with continued complaints of left knee pain and residual instability.  Initially, his knee condition improved following patelloplasty, but then progressively worsened.  He complained of a constant burning pain in the left knee with intermittent hyperextension and stated that he used his cane a majority of the time.  Flare-ups consisted of increased pain and burning, including when he stood up from a seated position.  He was unable to sit with legs dangling due to severe pain and what he described as instability.  He reported that during flare-ups and or repetitive use it was harder to move due to increased pain.

Left knee range of motion testing revealed normal extension and 85 degrees flexion with pain at 60 degrees.  However, following repetitive use, there was no additional limitation in range of motion.  However, there was functional loss and/or impairment in terms of less movement, weakened movement, excess fatigability, pain on movement, instability of station, and disturbance of locomotion.  There was tenderness to palpation for joint line or soft tissues and muscle strength testing was 4/5 on left knee flexion and extension.  Testing for anterior instability was normal.  Posterior and medial instability testing was 1+.  There was no evidence of recurrent patellar subluxation or dislocation.  He complained of frequent episodes of joint locking, pain, and effusion.  It was noted that due to the February 2010 left knee surgery he had chronic residuals consisting of severe painful motion or weakness.  A left knee scar was noted, but was not painful and/or unstable and did not consist of a total area greater than 39 square centimeters (6 square inches).  He frequently used a cane.  X-ray examination was negative for arthritis, but did indicate patellar subluxation.  The examiner diagnosed left knee status post total knee arthroplasty and partial patelloplasty with residual instability.

The examiner opined that the Veteran's left knee condition impacted his ability to work in that he had difficulty standing from a seated position and with prolonged sitting, standing, walking, and ambulating up and down stairs.  The examiner opined that some aspects of the Veteran's left knee disability appeared improved while instability had worsened with occasional falls.  Range of motion was noted to be slightly worse on his last examination in February 2011.  However, he had no significant pain on range of motion and the Veteran's reported perception of pain was the same since his last surgery in December 2010.  Overall, the examiner opined that the Veteran's left knee condition was the same as it was in April 2011.

It is recognized that the Veteran has complained of constant knee pain.  Pain on rising from a standing position or when the legs are dangling is severe, but this is not the equivalent of severe painful motion, required for a 60 percent evaluation under Diagnostic Code 5055.  A rating in excess of 30 percent under Diagnostic Code 5256, for ankylosis, is not warranted, as there is no evidence of ankylosis.  All examinations have demonstrated motion in flexion and extension.  Pursuant to Diagnostic Code 5261, a rating in excess of 30 percent is warranted for limitation of extension to 30 degrees or more.  In this case, extension has been full, to zero degrees.  Further, nonunion of the tibia and fibula has not been demonstrated so as to permit a rating in excess of 30 percent under Diagnostic Code 5262 for impairment of the tibia and fibula.  

Based on the evidence of record, the Board finds that a rating in excess of 30 percent for a left knee disability, status post total left knee replacement, for the period from April 1, 2011, to the present, is not warranted.  In this case, the Veteran's 30 percent rating for the left knee contemplates significant knee disability.  The competent and probative evidence does not establish that the left knee has been manifested by severe residuals of weakness, pain or limitation of motion at any time during the relevant period.  A 60 percent rating is not warranted as such an evaluation requires these residuals.

In addition, the Board further finds that there is no additional limitation of motion due to pain, fatigue, or similar symptoms as contemplated by DeLuca.  VA treatment records and the July 2013 VA examination reflect the Veteran's complaints of left knee pain and instability.  However, the Board finds that the Veteran's complaints of pain and functional impairment are consistent with, and encompassed by, the 30 percent disability rating for the period from April 1, 2011, to the present.  As such, the preponderance of the evidence is against a rating in excess of 30 percent, for the period from April 1, 2011, to the present.

Finally, the Board has considered whether a separate rating can be assigned for the left knee scar which resulted from the April 2010 surgery.  However, a separate compensable rating for the Veteran's scar is not warranted as neither the July 2013 VA examination nor treatment records have shown that it is deep or causes limited motion and cover an area at least six square inches (39 sq. cm.); is superficial and does not cause limited motion and cover an area of 144 square inches (929 sq. cm.) or greater; is superficial and unstable; or causes other disabling affects.  Therefore, the criteria for a compensable rating for a left knee surgical scar have not been met.  38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (as in effect prior to October 23, 2008).  See 73 Fed. Reg. 54,710 (Sept. 23, 2008).

In reaching the above conclusions, the Board has also not overlooked the Veteran's statements in support of his claim.  In this regard, the Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g. left knee pain and instability.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have.  See King v. Shinseki, 700 F.3d 1339, 1344 (Fed. Cir. 2012).  Furthermore, the Board finds the objective medical findings provided in the VA treatment records, to specifically include the July 2013 VA examiner's findings and opinion that the left knee disability was essentially unchanged from April 2011, should be accorded the greater probative weight.  See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators.").  The Board recognizes that the July 2013 VA examiner checked the box on the DBQ examination worksheet indicating chronic residuals of severe painful motion or weakness.  This finding, however, is no in accord with the remainder of the examination report and the Board does not find that the finding, alone, outweighs the balance of the examination report so as to warrant a 60 percent evaluation.  Further, the earlier clinical evidence during the appeal period similarly does not demonstrate severe residuals.

The above determination is based upon consideration of applicable rating provisions.  It should also be noted that there is no showing that the Veteran's disability has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b) (1).  In this case, there has been no showing that the Veteran's disability picture for his left knee could not be contemplated adequately by the applicable schedular rating criteria discussed above.  The criteria provide for higher ratings, but as has been explained thoroughly herein, the currently assigned rating, for the period since April 1, 2011, adequately describe the severity of the Veteran's symptoms for this disability during the period of appeal.  Given that the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's left knee disability picture includes such exceptional factors as periods of hospitalization and interference with employment.  With the exception of hospitalizations which are dated prior to the period on appeal, the Veteran has not been hospitalized for treatment of his left knee.  As to employment, while the Board observes that the July 2013 VA examiner indicated that the Veteran's left knee disability would impact his ability to work, the evidence does not show that he is unable to work due to his left knee disability.  Referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board notes, however, that in this case it appears that the Veteran retired from employment in 2001 (see the February 2011 and July 2013 VA examinations) and the record does not indicate and the Veteran has not asserted that he is unemployable due solely to his service-connected left knee disability.

In light of the foregoing, the Board finds that the Veteran's left knee disability, status post total left knee replacement, is not shown to meet the criteria for a higher rating.  As such, the claim for a higher rating must be denied.  Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application with regard to this claim.  38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Board has considered additional staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted.


ORDER

A rating in excess of 30 percent for a left knee disability, status post total left knee replacement, from April 1, 2011, to the present, is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs