Citation Nr: 1410186 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 12-09 285 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for left knee instability prior to January 6, 2011. 2. Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD) prior to January 6, 2011. 3. Entitlement to a rating in excess of 30 percent for status post left knee total replacement from April 1, 2012. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Shari Gordon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to August 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By a September 1999 rating decision, the Veteran was awarded service connection for left knee injury/meniscus tear and granted a 10 percent rating effective September 1, 1998. By the April 2010 rating decision, the RO recharacterized the Veteran's left knee disability as status post meniscectomies with DJD and continued the 10 percent rating. The RO then granted a separate 10 percent rating for instability effective October 30, 2009. By an October 2013 rating decision, the RO again recharacterized the left knee disability on appeal and assigned a 100 percent rating for left knee total replacement surgery from January 6, 2011 to April 1, 2012. A 30 percent rating was assigned from April 1, 2012. As higher ratings for the disability are available prior to and after this period, the appeal continues. FINDINGS OF FACT 1. Prior to January 6, 2011, the Veteran experienced no more than slight instability of the left knee. 2. Prior to January 6, 2011, the Veteran's left knee disability was manifested by complaints of pain, clinical findings of crepitus, moderate tenderness, and x-ray findings of arthritis. Functional losses equated to no worse than flexion to 100 degrees and full extension. 3. Since April 1, 2012, the Veteran's left knee total replacement has been manifested by disability equating to no worse than flexion limited to 110 degrees and full extension. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee instability prior to January 6, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257 (2010). 2. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease prior to January 6, 2011, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2010). 3. The criteria for a rating in excess of 30 percent for left knee total replacement since April 1, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and his representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was given the required notice in letters dated in November 2009 and January 2010. Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent July 2013 supplemental statement of the case. The Board also finds that the duty-to-assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant evidence. VA has obtained VA examinations with respect to the rating issues on appeal. Thus, the Board finds that VA has satisfied the duty-to-assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (2013). When there is a question as to which of two ratings shall be applied, the higher ratings will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In general, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When 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). The assignment of a particular diagnostic code is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Separate disabilities arising from a single disease entity are to be rated separately. 38 C.F.R. § 4.25 (2013); Esteban v. Brown, 6 Vet. App. 259 (1994). Pyramiding, or rating the same manifestation of a disability under different diagnostic codes, is to be avoided when rating service-connected disabilities. 38 C.F.R. § 4.14 (2013). Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2013). When making a rating determination, VA must consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (2013); Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). Degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). For the purpose of rating disabilities due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (2013). When limitation of motion of the specific joint or joints is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be applied for each such major joint or group of minor joints affected by limitation of motion. That rating cannot be combined with a limitation of motion rating of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2013). Separate evaluations may be assigned for limitation of flexion and extension of the same knee. VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension, the limitations must be rated separately to adequately compensate for functional loss. Id. Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). VA's General Counsel has additionally concluded that arthritis and instability of a knee may be rated separately; in other words, evaluation of knee dysfunction based on both arthritis and instability does not amount to pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998). Therefore, arthritis and instability of the knee may be rated separately, provided that any separate rating must be based upon additional disability. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Rating Based on Instability prior to January 6, 2011 Prior to January 6, 2011, the Veteran was in receipt of a 10 percent disability rating for the left knee under Diagnostic Code 5257. That Diagnostic Code provides that recurrent subluxation or lateral instability is rated at 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). The words "slight," "moderate," and "severe" are not defined in the VA Schedule for Rating Disabilities. Clinicians' use of terms such as "moderate" and "severe," although an element that the Board will consider, is not dispositive of the issue. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6 (2013). In this case, September 2009 and December 2009 private treatment examination results of the left knee revealed no evidence of subluxation, dislocation, or laxity. The Veteran underwent a VA examination in January 2010. The claims file was reviewed. The Veteran reported left knee symptoms of pain, weakness, stiffness, instability, giving way, locking, fatigability, and lack of endurance. He denied the use of ambulatory aids. He also denied suffering from any recurrent subluxation or abnormal movement of the bones. Upon examination, ankylosis of the knee joints was not found. McMurray's tests were positive on the left. Slight instability was noted. April 2010 and August 2010 private treatment examination results of the left knee revealed no evidence of subluxation, dislocation, or laxity. The Board finds that the evidence does not support the award of a rating in excess of 10 percent for instability. A rating in excess of 10 percent for knee instability requires a finding that the Veteran has "moderate" recurrent subluxation or lateral instability. The evidence does not support such a finding. Examiners have consistently found no history of recurrent patellar subluxation or dislocation. To the extent that clinicians have detected instability in the Veteran's knee, it has been of minimal or slight severity. In September 2009 and December 2009, private treatment records revealed no evidence of subluxation, dislocation, or laxity. Identical results were noted in April 2010 and August 2010 private treatment records. In January 2010, an examiner noted only "slight" instability on testing, but the examiner noted no history or evidence of recurrent patellar subluxation. Clinical findings have otherwise consistently revealed the Veteran's left knee to be stable. While the Board acknowledges the Veteran's contentions of giving way, locking, and instability, the Board places greater weight on the narrative medical reports, which do not describe symptomatology of recurrent subluxation or lateral instability that the Board finds meets a "moderate" level. Accordingly, the Board finds that a rating in excess of 10 percent based on instability was not warranted prior to January 6, 2011. The Board finds that the preponderance of the evidence is against the assignment of a higher rating based on instability. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DJD prior to January 6, 2011 A May 2009 private treatment record shows that the Veteran complained of left knee pain and underwent a private treatment examination. The examination revealed advanced osteoarthritis. September 2009 and December 2009 private treatment records show that the Veteran complained of constant, dull, and sharp pain that moderately interfered with his sleep pattern and daily activities. Examination of the left knee demonstrated normal flexion and extension. He had a mild antalgic gait. There was moderate medial and lateral joint line tenderness. Patellofemoral joint tests were normal. X-ray results revealed osteoarthritis of the left knee. During the January 2010 VA examination, the Veteran complained of daily, severe pain in the left knee lasting for three hours. The Veteran reported that his left knee flared when ambulating and climbing stairs and ladders. He described the extent of impairment on daily activities as moderate. The Veteran reported treatment with five to seven cubic centimeters (cc) per injection of cortisone shots once every three months. He reported a fair response to treatment and a side effect of pain upon injection. Upon physical examination, the examiner observed that the Veteran's gait was abnormal; specifically, antalgic on the left. The Veteran's left knee exhibited a range of motion of flexion to 100 degrees and normal extension to 0 degrees. There was objective evidence of pain, fatigue, and lack of endurance throughout motion testing, but no additional limitation due to weakness or incoordination. There was no joint ankylosis. Painful motion and instability were objectively noted. However, there was no edema, effusion, weakness, tenderness, redness, heat, abnormal movement, or guarding. The examiner observed a reduced ability to ambulate after 30 minutes without pain and exaggerated limping. There were no callosities, breakdown, or unusual shoe wear pattern of the left foot. X-ray of the left knee showed moderate arthritis. The examiner diagnosed the Veteran with left knee meniscectomy and DJD of the left knee. An April 2010 private treatment record shows that the Veteran reported constant, dull, and sharp pain that moderately interfered with his sleep pattern and daily activities. Examination of the left knee demonstrated normal flexion and extension. Gait and station examination revealed mild antalgic gait. There was moderate medial and lateral joint line tenderness. Patellofemoral joint tests were normal. X-ray results revealed osteoarthritis of the left knee. In August 2010, private treatment examination of the left knee demonstrated flexion to 120 degrees and normal extension. In December 2010, the Veteran underwent a private musculoskeletal examination at McKinney Comprehensive Care, which noted crepitus with pain on range of motion of the left knee. Turning to an evaluation of this evidence of record, the Board has considered the applicability of each of the Diagnostic Codes applicable to the knees. There is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. 38 C.F.R. § 4.71a (2013). With those Diagnostic Codes excluded, the issue is whether the Veteran is entitled to a greater level of compensation under the Diagnostic Codes that are potentially applicable to the Veteran's left knee limitation of motion disability: Diagnostic Code 5003, applicable to degenerative arthritis; Diagnostic Code 5260, applicable to limitation of flexion of the leg; or Diagnostic Code 5261, applicable to limitation of extension of the leg. 38 C.F.R. § 4.71a (2013). The Board will first evaluate whether a greater rating is available to the Veteran under Diagnostic Code 5260. During the January 2010 VA examination, the Veteran demonstrated left knee flexion to 100 degrees and during the August 2010 private treatment examination, the left knee demonstrated flexion to 120 degrees. All other private treatment records show that the Veteran had full left knee flexion. Accordingly, with flexion never limited to 45 degrees or less, a compensable rating is unavailable to the Veteran on the basis of impairment of flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2013). While the Board acknowledges that the Veteran's left knee has been awarded a 10 percent evaluation based on noncompensable limitation of flexion pursuant to DC 5010 (or 5003), the Board finds that a rating in excess of 10 percent based on limited flexion pursuant to DC 5260, does not apply to the Veteran's left knee for the period under consideration. With regard to left knee extension, the Veteran consistently demonstrated full extension. Accordingly, with extension never limited to 10 degrees or greater, a compensable rating is unavailable on the basis of impairment of extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2013). Thus, the Board finds that the Veteran is not entitled to an award based on limited extension of the left knee for the period under consideration. The Board must additionally consider functional loss due to pain and weakness, etc., that causes additional disability beyond that which is reflected on range-of-motion measurements. 38 C.F.R. § 4.40 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45 (2013). VA examiners and clinicians have noted the Veteran's complaints such as pain and weakness, and the Board has taken those complaints into consideration. The Board finds that the evidence does not support a finding that the Veteran's functional loss caused losses beyond those contemplated by the above-discussed range-of-motion results. While the Board accepts the credible contentions of the Veteran that his left knee disability caused him to experience significant pain, the Board has taken that into account in its consideration of the range of motion of the Veteran's left knee. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). Accordingly, a greater rating is not warranted based on functional loss beyond the functional limitations discussed above. With regard to whether the Veteran is entitled to a rating higher than 10 percent under Diagnostic Code 5010 and 5003 for arthritis, the Board concludes that he is not. Under Diagnostic Code 5003 and 5010, a 20 percent rating is not warranted unless X-ray evidence shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The knee is considered a major joint. 38 C.F.R. § 4.45 (2013). Accordingly, because there are not two or more major or minor joints involved, and because the Veteran is only service-connected for one knee, the Board finds that the Veteran is not entitled to a rating greater than the current 10 percent rating under this code. The 10 percent rating remains the highest rating warranted even considering functional loss due to pain and other factors. 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Board is aware of the Veteran's complaints of pain and his December 2010 private treatment note of crepitus on pain with range of motion, the Veteran's pain and crepitus was not shown by competent, objective evidence to be so disabling as to warrant the higher 20 percent rating under that diagnostic code. A separate rating for the Veteran's left knee under Diagnostic Code 5003 would thus similarly contemplate impaired motion and constitute impermissible pyramiding. Thus, the Board finds no basis for assignment of separate ratings for limited flexion and extension. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 10 percent for DJD of the left knee. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability since April 1, 2012 The Veteran's right total knee replacement is currently rated under 38 C.F.R. § 4.71a, DC 5055 as a knee replacement with prosthesis. Under DC 5055, a 100 percent rating is assigned for one year following implantation of a knee prosthesis for a service-connected knee disability, followed thereafter by a 60 percent rating when there are chronic residuals consisting of severe painful motion or weakness. With intermediate degrees of residual weakness, pain, or limitation of motion, a rating is made by analogy to DCs 5256, 5261, and 5262. The minimum rating is 30 percent under DC 5055. 38 C.F.R. § 4.71a, DC 5055. Records show that the Veteran underwent a total left knee replacement on January 6, 2011. The Veteran was assigned an evaluation of 100 percent until April 1, 2012, following his total knee replacement surgery. An evaluation of 30 percent was then assigned. In October 2012, the Veteran was afforded a VA examination to assess the condition of his left knee following the total replacement surgery. At this examination, he reported generalized pain around the prosthesis with standing over 20 minutes and walking over three blocks. The Veteran further reported that his pain had improved and that the knee had no crepitus. He reported that flare-ups did not impact the function of the knee or lower leg. Range-of-motion studies revealed extension to 0 degrees and flexion to 110 degrees to the point of pain with additional flexion to 120 degrees. The Veteran was able to perform repetitive-use testing with three repetitions. The examiner noted that the Veteran had functional loss of the left knee and lower leg. Specifically, noting pain on movement and interference with sitting, standing and weight bearing. No other functional limitations were noted. There was pain on palpation of the left knee. Muscle strength was normal for flexion and extension. Lachman tests were normal. Medial-lateral instability was normal. There was no evidence or history of recurrent subluxation or dislocation. The examiner noted that the Veteran's knee condition did not impact his ability to work. The examiner observed intermediate degrees of residual weakness, pain or limitation of motion. However, there were no chronic residuals consisting of severe painful motion or weakness. Diagnostic testing revealed no degenerative or traumatic arthritis or any patellar subluxation. X-rays showed good position of the prosthesis. The examiner reported that the AP and lateral views of the left knee showed that the distal femur and proximal tibia were resected and replaced by a metallic and plastic prosthesis in good position showing no evidence of separation or osteomyelitis. The joint space was maintained. Soft tissues were normal in appearance. In order to warrant a rating in excess of 30 percent for the Veteran's service-connected left knee disability, the Veteran would have to be found to have chronic residuals of a left knee replacement consisting of severe painful motion or weakness, ankylosis of the knee in flexion between 10 degrees and 20 degrees, limitation of knee extension to 30 degrees, nonunion of the tibia and fibula with loose motion and the need for a brace, or some combination of levels of limitation of extension, limitation of flexion, subluxation, or instability which would result in a rating in excess of 30 percent. In this case, the Veteran's service-connected left total knee replacement for the period from April 1, 2012 was manifested by prosthetic replacement with flexion to 110 degrees, and full extension. There was no evidence of subluxation or dislocation. While the examiner indicated intermediate degrees of residual pain, weakness, or limitation of motion, there were no chronic residuals consisting of severe painful motion or weakness. There was no suggestion that functional losses due to pain, etc. can be equated to any greater limitation of motion. Also, there was no limited extension or flexion such that a rating higher than 30 percent may be assigned. Therefore, entitlement to a rating in excess of 30 percent for the period from April 1, 2012 must be denied. Extra-schedular Consideration The Board has also considered whether to refer this case for consideration of increased compensation on an extraschedular basis. The VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Thun v. Peake, 22 Vet App 111 (2008). The Board finds that the evidence does not show such an exceptional disability picture due to knee disability that the available schedular rating for a knee disability, with consideration of functional losses, is inadequate. A comparison between the level of severity and symptomatology of the Veteran's knee functional loss with the established criteria found in the rating schedule and regulation governing functional loss reveals that the criteria reasonably describe the Veteran's disability level and symptomatology. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than those assigned based on more significant impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a rating in excess of 10 percent for left knee instability prior to January 6, 2011, is denied. Entitlement to a rating in excess of 10 percent for left knee DJD prior to January 6, 2011, is denied. Entitlement to a rating in excess of 30 percent for a left total knee replacement from April 1, 2012, is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs