Citation Nr: 1343391 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-26 035 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for left knee subluxation from March 31, 2009 to September 8, 2009. 2. Entitlement to an initial evaluation in excess of 10 percent for left knee arthritis, from March 31, 2009 to September 8, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1971 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision by the RO which reopened and granted service connection for a left knee disability, and assigned separate 10 percent evaluations for left knee arthritis and subluxation of the left knee; effective from March 31, 2009, the date of receipt of the Veteran's reopened claim. 38 C.F.R. § 3.400(a)(2), (r) (2013). By rating action in December 2009, the RO assigned a 100 percent temporary total convalescence rating under the provisions of 38 C.F.R. § 4.30 from September 8, 2009 to November 1, 2009, and a 30 percent schedular rating for total knee replacement of the left knee, thereafter. By rating action in March 2010, the RO assigned an increased rating to 30 percent for left knee subluxation; effective from March 31, 2009 to September 8, 2009. By rating action in August 2011, the RO denied service connection for a right ankle disability. A notice of disagreement was received in September 2011, and a statement of the case (SOC) was promulgated in September 2012. However, the Veteran did not perfect an appeal for this issue. Accordingly, this matter is not in appellate status and will not be addressed in this decision. Finally, by rating action in February 2010, the RO denied an earlier effective date for the grant of service connection for the Veteran's left knee disabilities. The Veteran and his representative were notified of this decision and did not appeal. Accordingly, this matter is not in appellate status and will not be addressed in this decision. The rating issues on appeal pertain specifically to time periods prior to a total left knee replacement. In a February 2013 statements, the Veteran's representative indicated that the Veteran believes the total left knee replacement had worsened. As this issue is not in appellate status, the Board refers it to the RO for appropriate action. FINDINGS OF FACT 1. The 30 percent evaluation assigned for subluxation of the left knee from March 31, 2009 to September 8, 2009, is the maximum rating possible for instability and subluxation of the knee. 2. From March 31, 2009 to September 8, 2009, the Veteran's left knee arthritis was manifested by pain, swelling and decreased range of motion; functional limitation due to pain, weakness, incoordination, fatigability, repetitive use or during flare-ups commensurate with the criteria for a higher evaluation based on limitation of motion is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for subluxation of the left knee from March 31, 2009 to September 8, 2009, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5257 (2013). 2. The schedular criteria for an evaluation in excess of 10 percent for arthritis of the left knee from March 31, 2009 to September 8, 2009, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.20, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Such notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5106, 5107, 5126 (West 2002; 38 C.F.R. § 3.326 (2013); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in May 2009. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini, 18 Vet. App. at 112; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006)). Additionally, this appeal stems from a grant of service connection; thus, no further notice is necessary. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all VA and private medical records have been obtained and associated with the claims file. The Board has also reviewed the Veteran's Virtual VA electronic records. The Veteran was examined by VA during the pendency of this appeal and was afforded an opportunity for a personal hearing, but declined. The Board finds that the VA examination was comprehensive in scope and adequate upon which to base a decision on the merits of the issues addressed in this decision. The examination report included a detailed description of the Veteran's medical history, a discussion and analysis of the clinical findings, and provided a rational explanation for the conclusions reached and pertains to the specific rating period on appeal. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the merits of the issues on appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. II. Analysis Increased Ratings - In General In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When, as in this case, the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also 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). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Left Knee Disability The Veteran contends that the 10 and 30 percent ratings initially assigned for arthritis and subluxation of the left knee, from March 31, 2009 to September 8, 2009, respectively, did not adequately reflect the severity of his knee disability, and believes that higher evaluations should be assigned prior to the date of his total knee replacement. Historically, service connection was established for the Veteran's left knee disability by rating action in October 2009, and was initially assigned a 10 percent rating under Diagnostic Code (DC) 5259 for arthritis, and a separate 10 percent rating under DC 5257 for subluxation; each effective from March 31, 2009, the date of receipt of his reopened claim. 38 C.F.R. § 3.400(q)(2), (r). In a letter received in October 2009, the Veteran expressed dissatisfaction with the combined 20 percent rating assigned. In a letter from his representative, received in December 2009, the representative stated that the Veteran would be satisfied with a 30 percent rating for his knee. By rating action in March 2010, the RO assigned an increased rating to 30 percent for subluxation of the left knee; effective from March 31, 2009 to September 8, 2009; the date of his total knee replacement surgery. The RO notified the Veteran that this was considered a complete grant of the benefit sought for subluxation of the left knee, and promulgated an SOC denying the claim for an initial rating in excess of 10 percent for arthritis of the left knee. In a letter received in February 2011, the representative expressed dissatisfaction with the 30 percent evaluation assigned by the March 2010 rating decision. Thus, the question to be resolved in this case is whether the Veteran is entitled to initial evaluations in excess of 10 percent for arthritis of the left knee, and in excess of 30 percent for subluxation of the left knee, from March 31, 2009 to September 8, 2009, the date of his total left knee replacement surgery. Under DC 5257, for knee impairment manifested by subluxation or lateral instability, a 30 percent evaluation is the maximum rating possible under that provision of the rating schedule. 38 C.F.R. § 4.71a (2013). Thus, a higher schedular rating is not possible for any residual impairment manifested by subluxation or instability in the knee. The Veteran's arthritis of the left knee, was assigned a 10 percent rating under DC 5260 for arthritis with limitation of motion to a noncompensable degree. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DCs 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under DC 5260, limitation of flexion of a knee warrants a noncompensable evaluation if limited to 60 degrees, a 10 percent evaluation when limited to 45 degrees, 20 percent when limited to 30 degrees and a 30 percent evaluation when flexion is limited to 15 degrees. 38 C.F.R. § 4.71, DC 5260. Under DC 5261, limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and a 50 percent evaluation when extension is limited to 45 degrees. 38 C.F.R. § 4.71, DC 5261. The normal range of motion for a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2013). In this case, the clinical and diagnostic findings from the medical reports of record from March 31, to September 8, 2009, showed x-ray evidence of arthritis in the left knee and limitation of flexion to no less that 110 degrees; the Veteran was not shown to have any limitation of extension. (See September 2009 VA examination report). Private medical records prior to the Veteran's total knee replacement in September 2009, showed extension/flexion from zero to 120 degrees in March 2009 and zero to 110 degrees in August 2009. None of the reports showed flexion to less that 110 degrees or any limitation of extension. As noted above, an evaluation in excess of 10 percent for knee impairment under DC 5260 or 5261 based on limitation of motion requires flexion limited to 30 degrees or less, or extension to 15 degrees or more. Here, the Veteran had no limitation of flexion to less than 110 degrees or extension to greater than 5 degrees prior to his total knee replacement in September 2009. Thus, a higher evaluation based on limitation of motion under the above cited rating codes from March 31, 2009 to September 8, 2009, is not warranted. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Other potentially applicable rating codes which may provide a basis for assigning a higher evaluation include DC 5256, which requires ankylosis of the knee joint, which is not shown. The Veteran is also not shown to have dislocated or removal of semilunar cartilage, or impairment of the tibia and fibula, so as to warrant the assignment of an additional separate disability rating. 38 C.F.R. § 4.17a, DCs 5258, 5259, 5262. As none of these codes are applicable to the facts in this case, a higher evaluation under any of these rating codes is not possible. As there were no other examinations or medical reports that provided a description of the Veteran's range of motion of the left knee prior to his total knee replacement in September 2009, the Board finds that the preponderance of the evidence supports the assignment of a 10 percent rating, and no higher, under DC 5260 from March 31, 2009 to September 8, 2009. The Board must also consider whether a higher disability evaluation is warranted from March 31, 2009 to September 8, 2009, on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board has considered the Veteran's assertions that he has had chronic pain and limitation of motion in his knee since filing his claim in March 2009. However, the objective findings on the VA examination and private medical reports did not show more than noncompensable limitation of flexion and no limitation of extension at any time prior to September 8, 2009. Furthermore, there was no objective evidence of any change in his range of motion on repetitive movement on the VA examination prior to his total knee replacement. While the Veteran reported some functional impairment due to pain when examined by VA in September 2009, the combined 40 percent schedular rating in effect at that time adequately compensated for any additional functional impairment. The Board recognizes that the Veteran has knee pain on a daily basis which impacts on his ability to engage in some activities. However, "a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40." Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Here, there was no objective evidence of any additional functional loss of use due to pain, on flare-ups or on repetitive use of the left knee prior to his total knee replacement. Therefore, the Board finds that the level of functional impairment was adequately compensated by the combined 40 percent evaluations assigned from March 31, to September 8, 2009. The percentage ratings in VA's Schedule for Rating Disabilities represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. As there is no objective evidence of any additional functional loss of use due to pain or on flare-ups prior to September 8, 2009, the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not provide a basis for a higher rating. Significantly, as noted previously, a 30 percent rating is the maximum schedular rating under DC 5257. Thus, a higher schedular rating is not permissible for any associated subluxation or instability of the left knee. Applying all of the appropriate diagnostic codes to the facts of this case, an objective assessment of the Veteran's impairment of the left knee does not suggest or otherwise show, that he had sufficient symptoms so as to warrant an evaluation in excess of 10 percent for arthritis, or in excess of 30 percent for subluxation of the left knee, prior to September 8, 2009. Fenderson, 12 Vet. App. at 119; see also Hart, 21 Vet. App. at 505. Additionally, the Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (2013). In this case, the Board finds that the manifestations of the Veteran's left knee disability (pain, limitation of motion, subluxation, instability, etc.) prior to September 8, 2009, were consistent with the schedular criteria, and there was no objective evidence that any manifestations related to his service-connected disability was unusual or exceptional. In view of this, referral of this case for extraschedular consideration is not in order. See Thun v. Peake, 22 Vet. App. 111 (2008); Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). For all the foregoing reasons, the Board finds that the claims for higher initial ratings for the Veteran's service-connected left knee disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for higher initial ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial evaluation in excess of 30 percent for subluxation of the left knee, from March 31, 2009 to September 8, 2009, is denied. An initial evaluation in excess of 10 percent for arthritis of the left knee, from March 31, 2009 to September 8, 2009, is denied. ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs