Citation Nr: 1340478	
Decision Date: 12/06/13    Archive Date: 12/20/13

DOCKET NO.  10-00 542	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for status post medial meniscus repair of the right knee.  

2.  Entitlement to service connection for a right hip disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Emily L. Tamlyn, Counsel


INTRODUCTION

The Veteran served on active duty from September 1990 to September 1994, and from November 1996 to October 2003.  

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision in which the RO denied an increased rating for the right knee as well as service connection for the right hip.  

In June 2013, this claim was remanded for a Board hearing, which was accomplished in August 2013.  A transcript of the hearing has been reviewed and is associated with the file.  

The issue of service connection for a right hip disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


FINDING OF FACT

The status post medial meniscus repair of the right knee has been manifested by dislocated, semilunar cartilage with locking, pain and effusion into the joint but no ankylosis; instability; limitation of flexion to 15 degrees; or, limitation of extension to 20 degrees.  



CONCLUSION OF LAW
 
The criteria for a 20 percent rating, but no more, for the status post medial meniscus repair of the right knee have been met.  38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5256 to 5263 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Veteran has elected to participate in the Expedited Claims Adjudication (ECA) Initiative.  See ECA Agreement and Waiver of Rights, received July 16, 2009.  The ECA is a pilot program designed to expedite the processing of claims and appeals by obtaining claimants' waivers of certain statutory and regulatory response periods, and by utilizing the Board's statutory authority to pre-screen cases to determine the adequacy of the record for decisional purposes.  The case has been processed under regulations governing the ECA.  See 38 C.F.R. §§ 20.1500-20.1510 (2013).  

In the June 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013).  The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide.  The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In July 2009, the Veteran submitted a statement that he waived due process and signed the ECA agreement and waiver of rights.  

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2013).  VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013).  Relevant service treatment and VA medical records have been associated with the claims file.  The Veteran was afforded a VA examination in August 2009, which is fully adequate because the report fully addressed rating criteria and the examiner reviewed the file, interviewed the Veteran and documented the knee symptoms.  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).  Here, the transcript of the August 2013 Board hearing shows the Veteran gave information regarding his increased rating claim and responded to questions aimed at determining whether further information was needed to substantiate the claim.  The Veteran has not raised complaints regarding the conduct of the hearing.  Nor has his representative, who was present at the hearing.  

As stated, in June 2013, this claim was remanded for a hearing, which was accomplished.  The Board finds that there has been substantial compliance with the remand.  See Stegall v. West, 11 Vet. App. 268 (1998).  

Further a waiver for evidence submitted at the hearing and received after last supplemental statement of the case (SSOC) was received in August 2013.  A waiver for evidence uploaded to Virtual VA after the last SSOC was also submitted in November 2013.  The Board finds the duties to notify and to assist have been met.  

Increased Rating- Right Knee

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013).  Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs).  38 C.F.R. § 4.27 (2013).  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1 and 4.2 (2013).  However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Also, the entire rating period is considered for the possibility of staged ratings.  Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).  

However, as will be discussed, no staged ratings are warranted by the evidence in the file.  

The assignment of a particular DC is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology.  Any change in a DC by VA must be specifically explained.  Pernorio v. Derwinski, 2 Vet. App. 625 (1992).  

The Board must evaluate disabilities under multiple DCs to determine if there is any basis to increase the assigned rating.  Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities.  38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2013).  

It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several DCs; however, the critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (2013) (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses).  

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 which becomes painful on use must be regarded as seriously disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45 (2013).  

VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  DeLuca v. Brown, 8 Vet. App. 202 (1995).

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 (2011); cf. 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 rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.  However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the DC provisions predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996).  

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2013).  

Under 38 C.F.R. § 4.71a, DC 5257 concerns "other impairment of the knee," and an assignment of a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability.  A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability.  The words "slight," "moderate," and "severe" as used in the various DCs 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 (2013).  

DC 5258 addresses dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating.  DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating.  

Throughout the appeal period, the Veteran has been rated 10 percent disabling under DC 5259.  

DC 5260 provides for the evaluation of limitation of flexion of the knee.  38 C.F.R. § 4.71a.  (Standard motion of a knee is from 0 degrees extension to 140 degrees flexion.  38 C.F.R. § 4.71, Plate II.)  A 20 percent rating is warranted when flexion is limited to 30 degrees.  A 30 percent rating contemplates limitation to 15 degrees.  

DC 5261 provides for the evaluation of limitation of extension of the knee.  38 C.F.R. § 4.71a.  A 20 percent rating is warranted when extension is limited to 15 degrees.  Extension limited to 20 degrees warrants a 30 percent evaluation, extension limited to 30 degrees warrants a 40 percent evaluation, and a 50 percent evaluation contemplates extension limited to 45 degrees.  

Ankylosis of the knee is addressed under DC 5256, however, the right knee has not shown to be in any way ankylosed.  Further there has been no showing of impairment to the tibia or fibula (DC 5262) or genu recurvatum (DC 5263).  

Degenerative arthritis is covered under DC 5003.  38 C.F.R. § 4.71a.  If established by X-ray findings, it is rated on the basis of limitation of motion under the appropriate diagnostic codes.  38 C.F.R. § 4.71a, DC 5003 (2013).  When limitation of motion is noncompensable under the DCs, a rating of 10 percent is for application under each major joint or group of major joints affected by limitation of motion, to be combined, not added, under DC 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.  With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups a 10 percent rating is assigned.  A 20 percent rating is assigned with the same involvement, plus occasional incapacitating exacerbations.  Note (1) states that the 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2) (2013).  

The Board finds the Veteran to be both competent and credible in report of his symptoms regarding his service-connected knee disability.  See Washington v. Nicholson, 19 Vet. App. 362 (2005).  Moreover, such reports are deemed credible here.  See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate).  

As background, in October 1994 the RO grant service connection for "right knee strain" at 10 percent disabling, under DC 5257, effective September 20, 1994 (after the Veteran's first period of service).  In March 2004, the RO continued the 10 percent rating, but the disability was now characterized as post surgery medial meniscus repair for the right knee and the DC was changed to 5259 effective October 21, 2003.  In October 2006, the RO continued the 10 percent rating for the right knee under DC 5259.  Finally, in the September 2009 RO rating decision (the decision on appeal) the RO assigned a temporary total (100 percent rating) from July 7, 2009 through the end of August 2009; after that the rating continued at 10 percent.  

At the August 2013 Board hearing, the Veteran stated that he could not perform "a lot of jobs" anymore because of physical limitations.  (Transcript, p 3.)  Throughout the course of the day he had pains in his knee or hip and he has to take medication.  Id.  He tried to exercise his knee.  (Transcript, p 4.)  It was hard to work construction with his problems but he needed the income.  Id.  He had catching or locking sometimes, although it was improved with the surgeries.  (Transcript, p 5.)  He got a cane for his knee.  Id.  His last surgery was in 2009; he still had tears in his knee.  (Transcript, p 6.)  After the original surgery, he had locking/catching every day, but currently it was just occasionally.  (Transcript, p 7.)  

Here, the evidence is essentially consistent in showing that the Veteran still has tears shown by a more recent MRI and that he has had locking, pain, and effusion in his joint.  A May 2009 VA orthopedic record showed a small effusion, as did a July 2011 VA ER record.  In August 2011, a VA record showed he continued to complain of right knee pain with edema.  January and November 2012 VA records showed the Veteran reported locking.  A July 2012 VA record referenced recent MRI studies indicating a fairly large posterior horn tear in the medial meniscus (note this record also raised the issue of whether the symptoms were being caused by the currently nonservice-connected right hip problems).  

DC 5259 does not provide for an increase beyond 10 percent, but DC 5258 does provide for a 20 percent increase.  As a result, the Board finds that DC 5258 is the appropriate code here and an increase is warranted.  Indeed, the Veteran's disability picture involves some instability complaints, including locking, and also pain, both of which are contemplated under Diagnostic Code 5259.

While there were occasions where no effusion was found (see January and November 2011, January 2012 and October 2012 VA records) and while a February 2012 VA record stated that the Veteran's examination was not consistent with his meniscal pathology causing the current pain, the Board will resolve doubt in his favor and award the increased rating based on DC 5258 (cartilage, semilunar, dislocated, with frequent episodes of locking, pain and effusion into the joint).  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  

While a 20 percent evaluation is deemed warranted under Diagnostic Code 5258, there is no support for an evaluation in excess of that amount.  Indeed, there is no showing of severe instability such as to warrant a 30 percent evaluation under DC 5257.  For example, a May 2009 VA orthopedic record showed the knee was stable to varus and valgus stress.  Prior to surgery in July 2009, a VA history and physical examination record showed no signs of instability.  A September 2010 and August 2011 VA record showed the Veteran denied his knee is "giving out" at this time, but he still had pain.  Other records also showed no instability (See January 2011, July 2011 ER, November 2011, January 2012, February 2012, and July 2012 VA records).  At his hearing, he endorsed occasional problems with instability but was unable to provide a more specific frequency regarding his symptoms.  Overall, the Board does not find that severe instability has been shown at any time and thus a higher rating is not warranted under DC 5257.  The instability that has been demonstrated in the record is adequately contemplated under the current DC.  

Also, there is no showing of right knee limitation of motion to the degree that a 30 percent rating would be warranted.  Even soon after the July 2009 surgery, follow up records showed that he was doing well with follow up on the right knee with strength and range of motion.  In fact, often the range of motion was normal (see January and March 2009 VA records) or any limitation was not compensable (See May 2009 VA orthopedic, July 2009 VA history and physical examination, July 22, 2009 VA orthopedic post-surgery, January 2011, November 2011, January 2012, and July 2012 VA records).  No increase is available under the limitation of motion DCs, 5261 and 5260, even with consideration of additional limitation due to pain and weakness.  In this regard, despite complaints of pain with prolonged standing, the records show that the Veteran has remained employed, in school and active even though his disability has been symptomatic (See July 2010, January 2012, July 2012, and November 2012 VA records).  Additionally, VA examination indicated that there were no specific flare-ups.  Hence, there is no basis to find additional limitation due to functional factors.  See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 32.  

While the Veteran does have arthritis in the right knee (see May 2009 VA orthopedic record), the arthritis code (DC 5003) does not provide for an increase here; two major or minor joint groups are not affected.  38 C.F.R. § 4.71a.  In any event, his knee pain is already contemplated as a part of the symptoms under DC 5258.

In sum, a 20 percent evaluation, but no higher, for the Veteran's right knee symptomatology is warranted throughout the rating period on appeal.

For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded.  38 C.F.R. § 3.321 (b)(1) (2013).  In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted.  Either the RO or the Board must first determine whether the schedular rating 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, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  

The Board has considered step one under Thun, 22 Vet App 111, and finds the schedular rating to be fully adequate in this case.  The Veteran described his knee symptoms, which are typical for his disability and encompassed in the schedule via reference to various symptoms and pain.  The Board finds the pertinent rating criteria, as detailed above, accurately describes the severity and symptoms of the service-connected status post medial meniscus repair of the right knee.  The evidence does not present an exceptional disability picture.  

The Veteran reported at the August 2013 hearing that he was employed.  The Board does not find that a claim of a total disability rating for individual unemployability (TDIU) has been raised in this case.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).


ORDER

For the period on appeal, a 20 percent rating, but no more, for the status post medial meniscus repair of the right knee is granted.  

REMAND

Regarding the claim of service connection for a right hip disability, the Board finds a remand is warranted for a more comprehensive opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (describing the characteristics of an adequate opinion).  



Accordingly, the case is REMANDED for the following action:

1. Send the claims file to a VA medical professional who is qualified to determine the nature and etiology of any diagnosed right hip disability, to include arthritis.  A copy of this remand and the claims file should be provided to the opinion writer in conjunction with the examination.  All necessary testing should be conducted.  

The examiner should review the entire file and then respond to the following: 

* Is it as least as likely as not (a 50 percent or greater probability) that any right hip disability was incurred in or related to service?  Note the following records:   

o An October 2000 service treatment record showing complaints of right knee pain radiating into hip; 

o An October 2001 post-deployment form showing a torn ligament in the right leg and tendonitis;
 
o A January 2002 service treatment record showing chronic recurring pain to the hip; 

o May 2002 service treatment record noting that quadricep tone was fair; 

o An August 2003 service treatment record showing moderate atrophy of quadriceps; and 
o A May 2009 VA orthopedic record noting that X-rays of the R hip showed arthritic and cystic changes involving the femoral head with possibly mild dysplasia of the acetabulum, described as "significant."  

* Given the Veteran's hip complaints in service, please comment as to whether it is possible that the hip pain was a precursor to the current hip condition.  See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011).

* Is it as least as likely as not that any right hip disability was caused by or due to the service-connected right knee disability?  Note the following records:

o A July 2009 VA examination report, which provides a negative opinion but notes that the Veteran used to be a martial arts expert (a mistake corrected in February 2010 VAMC letter), does not account for the Veteran's in service occupation, and does not take into account complaints of hip pain in service;

o A January 2010 fee-basis opinion by Dr. C. of TSMO stating that generally meniscal pathology did not lead directly to degenerative changes of the hip or avascular necrosis but that it was feasible that alteration and gait could change loading habits; all records needed to be available for a better opinion to be rendered;
o A January 12, 2011 VA record where the clinician stated: "... it is possible that he has had avascular necrosis problems for a long period of time, but I do not really know that."  

o An August 2011 VA orthopedic record where a nurse practitioner noted chronic right hip pain and stated that "no doubt his hip pain is related to inadequate weight-bearing on his right hip."  

* Is it as least as likely as not that any right hip disability was aggravated (made permanently worse beyond the natural progression of the disease) by service-connected right knee disability?  

o If any right hip disability is aggravated by the service-connected right knee disability, identify the baseline level of severity of the disability and the permanent, measurable increase in the disability's severity that is attributable to the service-connected right knee disability.  

The examiner should give the reasons for the opinion given and support the reasons with accurate facts.  

2. Review the evidence and re-adjudicate the issue on appeal.  If the benefit sought on appeal is not granted, the Veteran should be provided with a SSOC and afforded the appropriate opportunity to respond to it.  Then the case should be returned to the Board for further appellate consideration.  

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).  




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs