Citation Nr: 1600349 Decision Date: 01/06/16 Archive Date: 01/21/16 DOCKET NO. 13-01 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased evaluation for right knee instability due to right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica with associated osteoarthritis; rated at 10 percent from October 23, 2012 to June 12, 2015. 2. Entitlement to an increased evaluation for right knee instability due to right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica with associated osteoarthritis rated as 20 percent since June 13, 2015. 3. Entitlement to an increased evaluation for status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica with associated osteoarthritis rated at 10 percent prior to June 13, 2015. 4. Entitlement to an increased evaluation for status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica with associated osteoarthritis rated as 20 percent since June 13, 2015. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from April 2000 to September 2002. This case is before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which denied entitlement to a higher rating for status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica with associated osteoarthritis. A November 2012 rating decision granted a separate 10 percent evaluation right knee instability due to right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica with associated osteoarthritis from October 23, 2012. In a June 2015 rating decision VA increased the evaluations for both right knee disorders to 20 percent, from June 13, 2015. As higher evaluations are possible, the claim for a higher evaluation remains pending. See A.B. v. Brown, 6 Vet. App. 35 (1993). In August 2015, the Veteran testified before the undersigned. The Agency of Original Jurisdiction obtained additional medical record since the last supplemental statement of the case in June 2015, but these are mostly duplicates of existing records and can be considered without prejudice to the appellant. FINDINGS OF FACT 1. The Veteran demonstrated no more than slight recurrent subluxation or lateral instability of the right knee between October 23, 2012 and June 12, 2013, and no more than moderate recurrent subluxation or lateral instability of the right knee since June 13, 2013. 2. Prior to June 13, 2015, the Veteran had cartilage damage with the combination of locking, pain and effusion into the joint. Since then, there is no higher available rating for meniscus injury. 3. Since August 24, 2010, the Veteran has had degenerative arthritis of the right knee with painful but a noncompensable limitation of right knee motion. CONCLUSIONS OF LAW 1. The requirements for increased evaluations for right knee instability due to right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica from October 23, 2012 to June 12, 2015, and since June 13, 2013, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5257 (2015). 2. A 20 percent rating is warranted for status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica prior to June 13, 2015. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5258 (2015). 3. The requirements for an evaluation higher than 20 percent for status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica since June 13, 2015, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.71a, Diagnostic Code 5258. 4. Entitlement to a separate 10 percent rating is warranted for right knee degenerative arthritis, since August 24, 2010. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59; 4.71a, Diagnostic Code 5003 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014) provides VA's duties to notify and assist a claimant with development of a claim for compensation benefits. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory VCAA notice, and proper assistance through obtaining medical records, along with scheduled VA examination. The Veteran provided statements to support his claims. The Board hearing facilitated development of the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The claims have been properly developed. Disability evaluations are determined by applying the VA rating schedule, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated under criteria identified by Diagnostic Codes. The Veteran was awarded separate ratings for different problems related to the right knee for instability, and damage to the meniscus. These issues are discussed below. In this decision the Board assigns a separate rating for right knee arthritis. Right Knee Instability Knee instability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for other impairment of the knee, with recurrent subluxation or lateral instability. A 10 percent rating is assigned for slight recurrent subluxation or lateral instability; 20 percent for moderate recurrent subluxation or lateral instability; 30 percent for severe recurrent subluxation or lateral instability. At an October 2010 VA examination, the Veteran reported constant right knee pain which increased with weight bearing, intermittent swelling, and that the joint would occasionally give way with weight bearing. Physical examination revealed that the appellant walked with a mild antalgic limp on the right. He had bilateral knee braces. There was definite tenderness over the medial and lateral joint lines, as well as patellofemoral joint tenderness. The patella grind test was positive. Right knee motion was from 0 to 120 degrees. The Lachman's and anterior drawer signs were negative. Pivot shift sign was trace positive. The collateral ligaments were stable to stress. X-ray studies showed degenerative changes. The Veteran was again examined in October 2012. He denied dislocation or subluxation in the right knee. There was right knee swelling. There was joint popping and clicking in the right knee. He wore a brace when awake. Joint stability tests showed normal anterior instability test, normal posterior instability test, and 1+ (0-5 millimeters variation) positive medial-lateral instability test. There was no evidence or history of recurrent patellar subluxation/dislocation. During the June 2015 VA examination, the Veteran described right knee swelling, buckling and giving out, with the right knee giving away sometimes without warning. There was no history of lateral instability or recurrent subluxation. Joint instability testing was positive, 1+ in the anterior, posterior, medial and lateral instability tests. The Veteran had chronic pain, instability and swelling. The preponderance of the evidence is against entitlement to an increased rating for right knee instability. From October 23, 2012 to June 12, 2015, a 10 percent rating provided the correct evaluation. The Veteran had no more than a "slight" level of disability because on VA examination in 2010 there was little to no sign of instability, and on re-examination in 2012 there was just a positive patella grind test. The Veteran had reported the right knee gave way sometimes, but there was no evidence of recurrent subluxation during this term. Diagnostic Code 5257 is limited to considering symptoms of subluxation and lateral instability, and is not a catch-all for any "other" impairment. See DeLisle v. McDonald, 789 F.3d 1372 (Fed. Cir. 2015). A 10 percent rating for this time period is correct. From the June 13, 2015 examination, the Veteran's 20 percent rating for moderate disability is also correct. He has demonstrated positive joint instability tests but at no worse than the level of 1+, and again there is no clinical evidence of recurrent subluxation. The result is that no more than 20 percent is in order. There is just no suggestion that right knee subluxation or lateral instability reached the point of being severe as to warrant a 30 percent rating. Based on the above, the ratings since October 23, 2012 will continue to apply. Meniscus Injury Under Diagnostic Code 5258, a single 20 percent rating applies for dislocated semilunar cartilage, with frequent episodes of "locking," pain and effusion into the joint. Since June 13, 2015, the Veteran has been receiving the highest evaluation available of 20 percent under Diagnostic Code 5258. No higher rating is available as a matter of law. For the period before June 13, 2015, the Board reviewed the evidence. VA examination of October 2012 indicated a history of a meniscus (semilunar cartilage) condition, with meniscal tear. There were related frequent episodes of joint pain, and frequent episodes of joint effusion. On the June 2015 examination, it was noted that the Veteran's meniscus condition involved meniscal tear, frequent episodes of joint locking, and frequent episodes of joint pain. Joint locking and joint pain were at a moderate level. The Board assigns a 20 percent rating for the term before June 13, 2015 in light of evidence showing that the Veteran had frequent locking, pain and effusion, even if not all at once on any one examination. While he already underwent a meniscectomy, and while there is no sure evidence that cartilage became "dislocated" again, there is enough to show that most of the requirements are met for a 20 percent evaluation under Diagnostic Code 5258 in light of the doctrine of reasonable doubt. 38 C.F.R. § 4.7 (2015). Degenerative Arthritis The original grant of service connection for right knee disability included "osteoarthritis." Since filing his August 2010 claim for increase, the Veteran has had x-ray evidence of degenerative arthritis in the right knee. He has also had some limitation of motion. While the exact requirements for a minimum 10 percent rating based on limitation of motion were not met under either Diagnostic Code 5260 or 5261, there was still noncompensable limitation of motion. As a result, a separate 10 percent rating for degenerative arthritis applies under Diagnostic Code 5003. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Conclusion The Board has considered whether this case should be referred for consideration of extrascheduler evaluation under 38 C.F.R. § 3.321(b)(1). The threshold factor for extrascheduler consideration is that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). The evidence in this case does not show such an exceptional disability picture. Comparison between the Veteran's current rating with the criteria found in the rating schedule shows that the rating criteria reasonably describe disability level and symptomatology. The Veteran and his representative have not identified any symptoms not recognized by the rating criteria, or alleged that the rating criteria are inadequate. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extrascheduler rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extrascheduler consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The Board finds that the requirements for an extra scheduler evaluation for the Veteran's service-connected disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. ORDER The claim of entitlement to an increased evaluation for right knee instability due to right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica, rated 10 percent from October 23, 2012 to June 12, 2015, and at 20 percent since June 13, 2015, is denied. Entitlement to a 20 percent rating for right knee meniscal injury, status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica is granted, from August 24, 2010 to June 12, 2015, subject to the laws and regulations governing the award of monetary benefits. The claim of entitlement to an evaluation greater than 20 percent for right knee meniscal injury, status post right anterior cruciate ligament reconstruction, medial meniscus repair, replacement of medial meniscus with autograft, lateral meniscectomy, and resection of medial synovial plica since June 13, 2015 is denied. Entitlement to a separate 10 percent rating for right knee degenerative arthritis is granted, effective August 24, 2010, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs