Citation Nr: 1603162	
Decision Date: 02/01/16    Archive Date: 02/11/16

DOCKET NO.  09-13 482	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a disability rating greater than 10 percent for stress reaction, left knee.

2.  Entitlement to a disability rating greater than 10 percent for stress reaction, right knee.

3.  Entitlement to a disability rating greater than 10 percent for left knee degenerative arthritis.

4.  Entitlement to a disability rating greater than 10 percent for right knee degenerative arthritis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1995 to May 1999.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

A Board hearing before a Veterans Law Judge (VLJ) was held in March 2011 in Waco, Texas.  A transcript of the hearing has been added to the record.  By a letter of September 2012, the Board informed the Veteran that the VLJ who held the March 2011 hearing was no longer employed at the Board, and that the Veteran had the right to request another hearing before a VLJ who would decide the case.  See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.707 (2015).  In October 2012, after the Veteran indicated that she wished to appear at a new hearing, the Board remanded the Veteran's knee disability claims for the scheduling of a hearing as requested by the Veteran.  In January 2013, the Veteran withdrew her request for a Board hearing.  See 38 C.F.R. § 20.702(e) (2015) (withdrawal of hearing request).

In June 2014, the Board remanded this matter for further evidentiary development.

The Board notes that the Veteran appealed the issues of entitlement to evaluations in excess of 10 percent for stress reaction of the left knee and 10 percent for stress reaction of the right knee, as listed in the January 2009 statement of the case (SOC). The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In light of Clemons, the Board finds that the Veteran's claims for entitlement to increased evaluations for degenerative arthritis of the left knee and right knee under Diagnostic Code 5010 are part and parcel to increased evaluations for stress reactions of the left knee and right knee under Diagnostic Code 5257.

By a filing of January 2016, the Veteran has waived initial review by the RO of evidence that was added to the Veteran's claims folder after the issuance of the most recent supplemental statement of the case (SSOC).  See 38 U.S.C.A. § 7105(e) (West 2014); 38 C.F.R. §§ 19.9, 20.1304(c) (2015).

A January 2016 filing of the Veteran references a "pending appeal for an increase of . . . thyroid goiter."  A Board decision of September 2011 denied the Veteran's February 2008 claim for a compensable rating for the service-connected disability of thyroid goiter with history of subclinical hyperthyroidism with hyperhidrosis and thyroid cyst.  Accordingly the Board notes that there is no appeal pending before the Board in relation to the Veteran's service-connection thyroid goiter disability.


FINDINGS OF FACT

1.  During the entire rating period on appeal, the Veteran's left knee disability is manifested by instability that is no worse than slight, motion limited to 90 degrees of flexion at worst, X-ray evidence of arthritis, subjective complaints of pain, weakness, giving way, objective evidence of painful motion, crepitation, grinding, locking, swelling, and effusion, without objective evidence of subluxation, ankylosis, or genu recurvatum.


2.  Prior to January 22, 2015, the Veteran's left knee extension was not limited to 10 degrees or more; from January 22, 2015, the Veteran's left knee extension was limited to 25 degrees at worst. 

3.  During the entire rating period on appeal, the Veteran's right-knee disability is manifested by instability that is no worse than slight, motion limited to 100 degrees of flexion at worst and 0 degrees of extension at worst, X-ray evidence of arthritis, subjective complaints of pain, weakness, giving way, objective evidence of painful motion, crepitation, grinding, locking, swelling, and effusion, without objective evidence of subluxation, ankylosis, or genu recurvatum.


CONCLUSIONS OF LAW

1.  During the entire rating period on appeal, the criteria for a disability rating greater than 10 percent for left knee instability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2015).

2.  During the entire rating period on appeal, the criteria for a disability rating greater than 10 percent for right knee instability have not been met or approximated.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2015).

3.  From February 4, 2008 to January 22, 2015, the criteria for a disability rating in excess of 10 percent for left knee degenerative arthritis have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2015).

4.  From January 22, 2015, the criteria for a rating of 30 percent for left knee degenerative arthritis based upon limitation of extension of the left knee are met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5261 (2015).

5.  During the entire rating period on appeal, the criteria for a disability rating in excess of 10 percent for right knee degenerative arthritis have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran seeks entitlement to increased disability ratings for her right and left knee disabilities.  The Board will first discuss certain preliminary matters.  The issues on appeal will then be analyzed and a decision rendered.

Stegall concerns

In June 2014, the Board remanded the Veteran's claim and ordered the AOJ to obtain all identified private treatment records and associate them with the claims file; to schedule the Veteran for a VA medical examination for her right and left knee disabilities; and thereafter to readjudicate the Veteran's claims and issue a supplemental statement of the case (SSOC) if the sought benefits were not granted.

The record reflects that the RO requested private medical records from the Veteran by a letter of January 2015, and that private treatment records were associated with the claims folder in February 2015.  A VA medical examination of the knee joints took place in January 2015.  The Veteran's claims were then readjudicated by an SSOC of February 2015.  Thus the Board's remand instructions have been complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that the Board errs as a matter of law when it fails to ensure compliance with a remand order).


Duties to Notify and Assist

Under the Veterans Claims Assistance Act (2000), VA has a duty to notify the claimant of any information not previously provided to VA that is necessary to substantiate the claim.  This notice must specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015).  In letters mailed to the Veteran in March 2008 and September 2008, VA satisfied this duty.  Although the September 2008 notice was delivered after the May 2008 rating decision denying the claim for a rating increase, an SOC of January 2009 and SSOCs of November 2009, August 2012, and February 2015 subsequently readjudicated the claims based on all the evidence.  The issuance of a fully compliant notification letter followed by readjudication of a claim, such as by a statement of the case or supplemental statement of the case, suffices to cure a timing defect.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  Thus the Veteran was not precluded from participating effectively in the processing of the claims, and the late notice did not affect the essential fairness of the decision.

The Veteran testified at a hearing before a VLJ in March 2011.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that a VLJ who chairs a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  Here the VLJ fully explained the issues on appeal during the hearing, discussed the Veteran's knee symptomatology, and suggested evidence that would benefit the Veteran's claims.  The hearing focused on the rating criteria necessary to substantiate the claims, and the Veteran's testimony demonstrated the Veteran's actual knowledge of the criteria necessary to substantiate the claims.  Accordingly the Board finds that, consistent with Bryant, the VLJ who conducted the March 2011 Board hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

VA also has a duty to assist a claimant in the development of the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  In the instant case, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate the claims and that there is no reasonable possibility that further assistance would aid in substantiating them.  The evidence of record includes statements from the Veteran, the Veteran's service treatment records, and postservice VA and private treatment records.

The Veteran was underwent VA examinations in April 1999, July 2009, and January 2015.  The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed the medical history, documented the Veteran's current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record.  The examination reports of July 2009 and January 2015 contain sufficient information to rate the Veteran's disabilities under the appropriate diagnostic criteria.  The Board concludes that the VA examination reports are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a VA medical examination or opinion must be adequate).


Higher evaluations for right and left knee disabilities

The Board will analyze the Veteran's right and left knee disability claims together, as they are currently rated under the same diagnostic code and, according to the medical evidence, show similar symptomatology.

Legal criteria, generally

Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015).  The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  See 38 C.F.R. § 4.10 (2015).  Separate diagnostic codes identify the various disabilities.  See 38 C.F.R. Part 4 (2015).  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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2015).

The assignment of a particular diagnostic code depends completely on the facts of the case.  See 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, diagnosis, and demonstrated symptoms.  A VA adjudicator must specifically explain any change in a diagnostic code.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  See 38 C.F.R. § 4.27 (2015).

A claimant may experience distinct manifestations of the same injury that would permit rating under several diagnostic codes.  None of the symptomatology for any one of the conditions, however, should duplicate the symptomatology of another condition, if several ratings are to be assigned under various diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  In this way, so-called "pyramiding" is to be avoided.  See 38 C.F.R. § 4.14 (2015).

All evidence must be evaluated in arriving at a decision regarding an increased rating.  See 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2015).  This includes the complete medical history of the claimant's condition.  See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, entitlement to compensation has already been established and an increase in the disability ratings is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim.  See 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.400(o)(2) (2015).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  In order for a claim to be denied on the merits, a preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Rating criteria relating to knee joint

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.  See 38 C.F.R. § 4.40 (2015).  With respect to joints, consideration is to be given to 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.  See 38 C.F.R. § 4.45 (2015); DeLuca v. Brown, 8 Vet. App. 202 (1995).  Pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).  Nor is pain alone, without a diagnosed or identifiable underlying condition, a disability for VA purposes.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999).

The intent of the rating schedule is to recognize "painful motion with joint or periarticular pathology as productive of disability" and (with or without degenerative arthritis) "actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."  See 38 C.F.R. § 4.59 (2015); Burton v. Shinseki, 25 Vet. App. 1 (2011).

Diagnostic Code (DC) 5260 provides for a noncompensable rating if flexion of the knee is limited to 60 degrees, a 10 percent rating if flexion is limited to 45 degrees, a 20 percent rating if flexion is limited to 30 degrees, and a maximum 30 percent rating if flexion is limited to 15 degrees.  See 38 C.F.R. § 4.71a, DC 5260 (2015).

DC 5261 provides a noncompensable rating if extension of the knee is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a maximum 50 percent rating if limited to 45 degrees.  See 38 C.F.R. § 4.71a, DC 5261 (2015).

For VA purposes, normal knee flexion is to 140 degrees, and normal extension is to 0 degrees (full extension).  See 38 C.F.R. § 4.71, Plate II (2015).  Ratings for both limitation of flexion and extension may be assigned for disability of the same joint.  See VA Office of General Counsel Precedent Opinion (VAOGCPREC) 9-2004, 69 Fed. Reg. 59990 (September 17, 2004).

DC 5257 addresses recurrent subluxation or lateral instability of the knee and provides for a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent maximum rating for severe impairment.  See 38 C.F.R. § 4.71a (2015), DC 5257 (2015).  The terms "slight, moderate, severe, [and] marked" are not defined by regulation and, when used by VA examiners, are not necessarily dispositive.

Under DC 5258, dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation.  See 38 C.F.R. § 4.71a, DC 5258 (2015).

Under DC 5010, traumatic arthritis is to be rated as degenerative arthritis under DC 5003.  DC 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  In the absence of limitation of motion, arthritis is rated as follows: 10 percent for x-ray evidence of involvement of two or more major joints or two or more minor joints groups; and 20 percent for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.71a, DC 5003 (2015).  The knee is considered a major joint for rating purposes. See 38 C.F.R. § 4.45 (2015).

A claimant who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding of 38 C.F.R. § 4.14.  Any such separate rating must be based on additional disabling symptomatology.  That is, separate evaluations are appropriate so long as there is evidence of limitation of motion that meets the requirements of the zero percent level under either DC 5260 or 5261.  See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998).

Under 38 C.F.R. § 4.118, DC 7801, a 10 percent rating of scars is warranted for scars not of the head, face, or neck, that are deep and nonlinear and have an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.).  A "deep" scar is one associated with underlying soft tissue damage.  Under 38 C.F.R. § 4.118, DC 7802, a 10 percent rating is warranted for scars not of the head, face, or neck that are superficial and nonlinear and have an area or areas of 144 square inches (929 sq. cm.) or greater.  A "superficial" scar is one not associated with underlying soft tissue damage.  Under 38 C.F.R. § 4.118, DC 7804, a 10 percent rating of scars is warranted for scars which are unstable or painful.  An "unstable" scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 to 7804 should be evaluated under an appropriate diagnostic code.  See 38 C.F.R. § 4.118, DC 7805 (2015).

Analysis

A rating decision of July 1999 granted the Veteran initial service connection for "stress reaction, left knee" and "stress reaction, right knee" with an evaluation of 10 percent for each knee.  In February 2008, the Veteran filed a claim for an increased rating with respect to both disabilities.  The RO confirmed and continued the 10 percent evaluations by a rating decision of May 2008.  In September 2008, the Veteran filed a notice of disagreement with respect to the increased rating claims for the disabilities of stress reaction of the left knee and stress reaction of the right knee.

In February 2015, following the receipt of medical evidence showing degenerative arthritis of the left knee and the right knee, the RO granted service connection for left-knee degenerative arthritis and for right-knee degenerative arthritis, with an evaluation of 10 percent for each knee.  A claimant who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 or 5010 (for arthritis) and 5257 (for instability) without violating the rule against pyramiding of 38 C.F.R. § 4.14.

With respect to instability of the knee joints, the Veteran's left knee and right knee are currently rated as 10 percent disabling as a consequence of "slight" recurrent subluxation or lateral instability under DC 5257.  In order to qualify for the next higher rating of 20 percent, the evidence must be at least in equipoise as to whether the recurrent subluxation or lateral instability is "moderate."  The Board finds that a preponderance of the evidence indicates symptoms consistent with "slight" impairment under DC 5257.

A February 2008 private treatment record notes no joint laxity.  In July 2009, the Veteran reported "instability or giving way" of both knees, but no instability was found upon examination.  See VA examination report of July 2009.  Crutches or braces were not used.  Id.

The Veteran reports a need to "brace" herself with her thumbs behind the knee "to help ease the pain of sitting."  The Veteran has also described how pain requires her use of a hand rail to ascend stairs.  See transcript of March 2011 Board hearing.

Chiropractic records of April 2011 document "bilateral knee pain (10+ years)" and "ligamentous instability of the knee."  A private treatment record of July 2011 showed "valgus alignment."   Lachman, pivot shift and posterior drawer tests were negative.  There was no detection of "pathologic medial or lateral laxity with the knee in extension or 30° of flexion".  The Veteran reported difficulty with stairs and the presence of "swelling, crepitation and popping."

In a statement of August 2011, the Veteran reported: "My knees continue to 'pop' and make grinding noises when I move about with excruciating pain."  She also reported taking daily doses of ibuprofen to manage the pain and being unable to exercise, including swimming, without becoming incapacitated by pain.

A January 2015 VA medical examiner noted that the Veteran had been on "modified duties to avoid weight bearing on the left knee as much as possible" for two weeks in 2012 following arthroscopic surgery on the left knee.  The Veteran reported to the examiner that, in 2013, her knees "gave out with weakness" while walking at work but that she did not fall.  The weakness reportedly reoccurred three or four times that year, with no further episodes in 2014.  The Veteran also stated that both knees "click/pop" and that there was mild, occasional swelling.  The Veteran used a brace occasionally at that time.  Specifically, the examiner noted: "Veteran wore bilateral knee braces when exercising up to 3 months ago.  She declines to continue wearing the braces due to appearances."  The Veteran was found to have "a normal ambulatory gait and hell/toe gait."  There was "no history of recurrent subluxation" or "lateral instability" of the right knee or left knee.  Joint stability testing of the left knee and right knee showed "normal" results.  See VA examination report of January 2015.

As a layperson, the Veteran is competent to attest to experienced symptoms, such as instability, popping, and grinding.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (stating that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).

The Veteran's reports of instability and giving way are considered credible.  The lack of objective evidence in this regard, however, preponderates against a finding that the Veteran's knee instability is more than slight, as opposed to moderate or severe subluxation or instability.  The Veteran has a normal gait and can walk without a brace.  While chiropractic records of April 2011 referenced instability, the weight of the evidence suggests that any instability is slight.  The Board finds that the Veteran's left knee instability is shown by a preponderance of the evidence to be no worse than slight during the entire appeal period.  Thus, the criteria for a disability rating greater than 10 percent for the left knee and right-knee recurrent subluxation or lateral instability have not been met or approximated under DC 5257.

The medical evidence of record demonstrates that the Veteran's right and left knee disabilities are also manifested by symptoms joint pain and limited range of motion.  A private treatment record of February 2008 found "normal" range of motion.  A July 2009 VA medical examination report noted the limitation of flexion of both knees to be 125 degrees, "limited by body habitus."  There was no limitation of extension bilaterally.   Range-of-motion testing showed "no change in motion upon repeated testing and no additional limitation is noted."  The report noted "no additional limitation of motion or functional impairment (for example, pain, weakness, fatigue, speed, or incoordination)" during a flare-up.  See VA examination report of July 2009.

A private medical record of July 2011 found that flexion of the left knee and right knee was limited to 130°.  As for bilateral limitation of extension, "difficulty [was] present with the terminal 15° of extension."  The examining physician appears to be describing evidence of painful motion at 15° of extension ("difficulty").  The limitation of extension was not provided by the private doctor as was done with respect to flexion.

Range-of-motion testing given as part of the January 2015 VA examination showed flexion of the left knee to be "25 to 90 degrees" and of the right knee to be "0 to 100 degrees."  Extension of the left knee was "90 to 25 degrees," and extension of the right knee was "100 to 0 degrees."

For the left knee, the abnormal range of motion was found to not "itself contribute to functional loss."  With respect to repetitive use of both the left knee and the right knee, the Veteran was "able to perform repetitive use testing with at least three repetitions, [and] there was [no] additional functional loss or range of motion after three repetitions.  The examination was found to "support the Veteran's statements describing functional loss with repetitive use over time" regarding repetitive use of both the left knee and the right knee.  Pain, weakness, fatigability or incoordination was found to be significantly limit functional ability with repeated use over a period of time.  The factor that causes this functional loss was listed as "pain."  In terms of range of motion, the limitation was described as flexion of "50 to 100 degrees" for the left knee and flexion of "70 to 105 degrees" for the right knee."  The Veteran reported no flare-ups.  There were no "additional contributing factors of disability" of the left knee and right knee.  See VA examination report of January 2015.

For VA purposes, normal knee flexion is to 140 degrees, and normal extension is to 0 degrees (full extension).  See 38 C.F.R. § 4.71, Plate II (2015).  The Veteran's most severe limitation of flexion during the period under review was 90 degrees for the left knee and 100 degrees for the right knee in January 2015.  Such limitation of flexion is not recognized under DC 5260, which provides for a noncompensable rating if flexion is limited to 60 degrees.

Where X-ray evidence of degenerative arthritis is presented, but the loss of range of motion is noncompensable, the 10-percent disability rating will be assigned under DC 5003.  See 38 C.F.R. § 4.59 (2015).  So it is in this case, with the Veteran having been granted service connection for left knee degenerative arthritis, with an evaluation of 10 percent under DC 5010, effective from February 4, 2008, and for right knee degenerative arthritis, with an evaluation of 10 percent under DC 5010, effective from February 4, 2008.

Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis.  Degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003, on the basis of limitation of motion as per the diagnostic codes for the specific joint.  A higher rating for the left knee and right knee based on limitation of flexion is not warranted because the evidence does not show a sufficient limitation of range of motion for compensation.  As noted, the flexion of the Veteran's left knee has measured, at worst, 90 degrees for the left knee and 100 degrees for the right knee. 

With regard to extension of the Veteran's knees, Diagnostic Code 5261 contemplates a noncompensable evaluation when the limitation of knee extension is 5 degrees.  The Veteran's limitation of extension was found to be a ratable level under DC 5261 at only one point during the period review, namely the limitation of extension of the left knee to 25 degrees as shown in January 2015.  This limitation of extension corresponds to a 30 percent rating for the left knee under DC 5261.  The evidence of record does not show functional impairment that further limits the degree of extension.  See VA examinations report of July 2009 and January 2015.  For both the left knee and the right knee, medical evidence of July 2011 shows "difficulty . . . with the terminal 15° of extension."  A staged rating is appropriate in this case, as the Veteran did not meet the criteria for a 30 percent rating prior to January 22, 2015, the date of the VA medical examination showing that the left knee extension was limited to 25 degrees.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The 30 percent rating granted under Diagnostic Code 5261 from January 22, 2015, basically supplants the 10 percent rating under Diagnostic Code 5010 for left knee degenerative arthritis.  When the limitation of extension of the Veteran's left knee reached a compensable level as shown by examination in January 2015, the degenerative arthritis of the left knee is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the joint involved (DC 5261).  A minimum rating of 10 percent is applicable only when arthritis is shown and the limitation of motion of the joint is noncompensable under the appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2015).

The change in diagnostic code is not a reduction.  The rating relating to the Veteran's left knee increases from 10 percent to 30 percent as a result of this decision.  The Board's selection of the appropriate diagnostic code to apply is supported by record evidence, as specifically explained in today's order.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  The change in diagnostic codes more accurately reflects the Veteran's symptoms and the benefit to which she is entitled.  See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011).

A preponderance of the evidence indicates that a rating in excess of 10 percent rating under Diagnostic Code 5003 (via DC 5010) for noncompensable, painful limitation of motion for arthritis of the left knee and the right knee is not warranted.  A higher rating of 20 percent is not called for in this case, in the absence of x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.71a, DC 5003 (2015).

The Board has also considered whether entitlement to a higher evaluation or separate evaluation is warranted under any other applicable diagnostic code.  Under DC 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint" warrants a 20 percent evaluation.  Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating.  Arthroscopic surgery was performed on the Veteran's left knee in December 2011.  This involved "a partial lateral meniscectomy was performed with the motorized 3.5 mm full radius synovial resector."  A "stable, appropriately contoured meniscus" remained."  See December 2011 record of Dr. C. W. 

There is evidence of bilateral knee pain, swelling, popping, and a "small volume joint effusion."  See July 2011 record of Dr. T. J.; December 2007 record of Dr. M. N.; and VA examination report of July 2009.  However, because the Veteran's bilateral knee disability has not been manifested by dislocation of the semilunar cartilage within the meaning of DC 5258, a 20 percent rating pursuant to DC 5258 is not warranted.  DC 5259 provides for only a 10 percent rating for the removal of the semilunar cartilage; therefore rating under that diagnostic code, as opposed to DC 5257, DC 5261, or 5010, would not result in a higher evaluation.

The required manifestations for evaluation under Diagnostic Codes 5256 (knee, ankylosis) and DC 5263 (genu recurvatum) are not applicable, as there is no finding of knee ankylosis or genu recurvatum.

The Veteran is already service-connected for stress reaction, left lower leg and ankle and for stress reaction, right lower leg and ankle, with evaluations of 10 percent for each disability under the hyphenated code DC 5262-5271.  See rating decision of July 1999.  An evaluation of 10 percent was granted for moderate limited motion of each ankle.  The Veteran is not seeking higher evaluations for the disability ratings made under DC 5262-5271, and they are not currently before the Board.  These disabilities concern the lower legs and ankles, not the knees.  DC 5262 relates to impairment of the tibia and fibula.  DC 5271 applies to limited motion of the ankle.

The Veteran has "healed portal scars" associated with her arthroscopic surgery of the left knee.  Upon examination, there was no evidence of tenderness to touch or pressure, and no scar was painful or unstable or had a total area equal to, or greater than, 39 square cm (6 square inches) or was located on the head, face, or neck.  Accordingly, the Veteran's scars do not call for ratings under Diagnostic Codes 7801 through 7805.

The Board does not have authority to grant an extraschedular rating in the first instance but can determine that a claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1) (2015).  The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.  If the criteria reasonably describe the Veteran's disability level and symptomatology, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required.  See Thun v. Peake, 22 Vet. App. 111 (2008).

The Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology pertaining to his service-connected left knee and right-knee instability, which is manifested by joint instability.  This is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  The Veteran's disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are adequate.  Referral for extraschedular consideration is therefore not required under 38 C.F.R. § 3.321(b)(1).

The Board notes that a claimant may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the Veteran's conditions fail to capture all the service-connected disabilities experienced.  See Johnson v. McDonald, 762 F.3d 1362 (2014).  In the case at hand, there is no evidence or allegation of additional symptoms or disabilities that have not been attributed to a specific service-connected condition.  The Veteran is currently service-connected for: tendonitis, right shoulder (dominant), rated as 10 percent disabling; stress reaction, left knee, rated as 10 percent disabling; stress reaction, right knee, rated as 10 percent disabling; stress reaction, left lower leg and ankle, rated as 10 percent disabling; stress reaction, right lower leg and ankle, rated as 10 percent disabling; plantar fasciitis, left, rated as 10 percent disabling; plantar fasciitis, right, rated as 10 percent disabling; left knee degenerative arthritis, rated as 10 percent disabling; right knee degenerative arthritis, rated as 10 percent disabling; right hip strain, rated at zero percent; hemorrhoids, rated at zero percent; ganglion cyst, left wrist, rated at zero percent; ganglion cyst, right wrist, rated at zero percent; tinea versicolor, rated at zero percent; and thyroid goiter with history of sub-clinical hyperthyroidism with hyperhidrosis and thyroid cyst, rated at zero percent.  While the Veteran stated at the March 2011 Board hearing in relation to her knee disabilities, "I'm kind of all over the place," the Veteran has not argued during the current appeal that her service-connected left knee disability and right-knee disability result in further disability when looked at in combination with his other service-connected disabilities.

A total disability rating based on individual unemployability due to a service-connected disability (TDIU), when either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of a claim for an increased rating.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The July 2009 VA examiner found "no effect on occupation as [the Veteran] notes pain but works thru or on her daily activities."  The Veteran has testified that she is employed as a physical education teacher.  See transcript of March 2011 Board hearing.  The January 2015 VA examiner found that the Veteran's left-knee and right-knee conditions do not impact her ability "to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)."  She has worked full-time as a teacher/curriculum specialist since 2001.  See January 2015 VA examination report.  The Veteran has testified as to how pain associated with her knee conditions limits her job performance.  See transcript of March 2011 Board hearing.  Taking into account the limitations in job performance caused by knee pain, the evidence of record does not show, and the Veteran has not asserted, that the left-knee and right-knee disabilities render her unable to obtain or maintain a "substantially gainful occupation."  See 38 C.F.R. § 416(a) (2015).  Accordingly, the Board concludes that the issue of TDIU has not been raised in this case.

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ORDER

Entitlement to a disability rating greater than 10 percent for stress reaction, left knee, is denied.

Entitlement to a disability rating greater than 10 percent for stress reaction, right knee, is denied.

Entitlement to a disability rating greater than 10 percent for left knee degenerative arthritis prior to January 22, 2015, is denied.

Entitlement to a disability rating of 30 percent from January 22, 2015 for left knee degenerative arthritis based upon limitation of extension of the left knee is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits.

Entitlement to a disability rating greater than 10 percent for right knee degenerative arthritis is denied.




____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs