Citation Nr: 1616383 Decision Date: 04/25/16 Archive Date: 05/04/16 DOCKET NO. 12-31 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 20 percent for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty with the Coast Guard from September 1954 to September 1956, and apparently had additional service with the Coast Guard Reserves. These matters are before the Board of Veterans' Appeals (Board) from a June 2012 rating decision by the New York, New York, Department of Veterans Affairs (VA) Regional Office (RO), which in relevant part, increased the rating for the left knee disability to 20 percent, effective December 9, 2011. In June 2014, a videoconference hearing was held before the undersigned; a transcript is associated with the record. In August 2015, the Board remanded these matters for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT Throughout, the Veteran's left knee disability is reasonably shown to have been manifested by episodes of locking, pain, and effusion into the joint (with flexion to no less than 135 degrees and extension to 0 degrees), as well as objective clinical findings of arthritis and painful motion; it is not shown to have been manifested by instability or subluxation/dislocation. CONCLUSION OF LAW The Veteran's left knee disability warrants a combined 30 percent rating (based on a formulation of 20 percent for dislocated semilunar cartilage under Diagnostic Code (Code) 5258, and 10 percent for osteoarthritis with painful motion under Code 5003.) 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Codes 5003, 5256-5263 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In March 2012, VA notified the Veteran of the information needed to substantiate his claim, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain, as well as notice of how VA assigns disability ratings and effective dates of awards. He received the "generic" notice required in claims for increase. He has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). 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 the Veterans Law Judge who conducts a hearing to fulfill two duties to comply with the above regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. During the June 2014 hearing, the undersigned identified the issue on appeal, explained the evidence needed to substantiate a higher rating, and identified development to be completed. A deficiency in the conduct of the hearing is not alleged. The Board finds that there has been compliance with 38 C.F.R. § 3.103(c)(2), in accordance with Bryant. The Veteran's pertinent treatment records have been secured. He was afforded VA examinations in April 2012 and October 2014. The Board finds the examination reports adequate for rating purposes as they note all findings (both early and current) needed to adjudicate the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The development requested in the Board's August 2015 remand (asking the Veteran for an authorization for VA to secure private treatment records from Dr. J.D.) was completed in October 2015. However, he did not reply, and the development for the records could not be completed. The Board notes the representative's March 2016 argument that it is unclear if VA sent the October 2015 letter to the Veteran based on notation in the Veterans Benefits Management System (VBMS) that reads, "Error/private physician name incorrect. Not sent." That document contained the Veteran's name in place of Dr. J.D.'s name. However, the file also contains a corrected letter, addressed to the Veteran with Dr. J.D.'s correct name, dated the same day. The corrected letter was sent in the regular course of business to the Veteran's address of record. There is no indication that it was returned as undeliverable. Hence, there has been compliance with the remand instructions, and corrective action is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not provided written authorization for VA to obtain records from Dr. J.D. The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193. The Board will proceed to rate his knee disability based on the evidence of record, assuming that the records sought either do not exist or do not support the Veteran's claim. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's left knee disability has been rated under Code 5257 (for impairment manifested by recurrent subluxation or lateral instability) which provides that such disability is rated 10 percent, when slight, 20 percent, when moderate, and a maximum 30 percent, when severe. 38 C.F.R. § 4.71a, Code 5257. Under Code 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5260, limitation of flexion of the leg warrants a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and a maximum 30 percent rating when limited to 15 degrees. Under Code 5261, limitation of extension of the leg warrants a 0 percent rating when extension is limited to 5 degrees; a 10 percent rating when limited to 10 degrees; a 20 percent rating when limited to 15 degrees; a 30 percent rating when limited to 20 degrees; a 40 percent rating when limited to 30 degrees; and a maximum 50 percent rating when limited to 45 degrees. The normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. Plate II. 38 C.F.R. § 4.71. Separate ratings may be assigned for separate symptoms, including [compensable] limitation of motion, instability, and dislocation of semilunar cartilage. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59990 (2004). Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate Code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under 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 , Code 5003. In determining the degree of limitation of motion, the provisions of 38 U.S.C.A. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Factual Background The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's claim for increased ratings was received in December 2011. Therefore, the relevant period for consideration in this appeal begins one year prior, in December 2010. December 2011 correspondence from the Veteran reports complaints of left knee pain and swelling which has limited his mobility. A January 2012 MRI of the left knee showed no evidence of osseous fracture or contusion. The medial and lateral collateral ligament complexes as well as the anterior and posterior crucial ligaments were intact. The patellar and quadriceps tendons were intact. A small joint effusion was noted, as well as a tear of the posterior horn of the medial meniscus. Regional soft tissues were unremarkable. The anterior horn of the medial meniscus and the lateral meniscus were both intact. On April 2012 VA examination, the Veteran reported having pain and swelling along the medial joint line. He explained that the pain is constant and aching in nature, rated as 4-5/10, with occasional sharp pain rated as 9/10 on the pain scale. Stair climbing exacerbated his pain. He was able to walk a half mile and independently perform the activities of daily living with use of a knee brace. The Veteran explained that he experiences three to four flare-ups per week after climbing stairs or walking long distances. He treats the pain with Tylenol. Range of motion testing showed full range of motion (flexion to 140 degrees or greater, extension to 0 or hyperextension). Pain was noted at the end of motion on flexion and not present on extension. There was no loss of range of motion or additional limitation following repetitive testing. There was functional loss/impairment based on motion and swelling. Tenderness/pain was noted on palpation. Muscle strength tests were normal. There was no anterior instability, posterior instability, medial-lateral instability, or patellar subluxation/dislocation. Review of a January 2012 MRI reflects small joint effusion with a tear of the posterior horn of the medial meniscus. April 2012 X-rays showed no evidence of acute fracture, dislocation, significant degenerative change, joint effusion, or soft tissue abnormality; a prominent osteophyte is noted at the superior pole of the patella. The diagnoses were osteoarthritis and torn posterior horn of the medial meniscus. Frequent episodes of joint "locking," pain, and effusion were noted. The examiner opined that the Veteran's knee disability does not impact on his ability to work. July 2012 correspondence from Dr. J.D. explains that the Veteran has moderate to severe left knee pain secondary to a torn meniscus. The note explains that the Veteran is unable to climb or descend stairs without significant pain and stumbles on flat ground because his knee pain causes his leg to buckle at times. August 2012 correspondence from the Veteran reports complaints of constant left knee pain with occasional swelling, pain when negotiating stairs, and tripping while walking. July 2014 correspondence from Dr. J.D. explains that the Veteran has probable cartilage damage and arthritis of the left knee. The note explains that the Veteran has chronic pain and weakness, cannot stand from a low chair or squat without assistance, and that his knee gives out occasionally. August 2014 correspondence from the Veteran reports complaints of his left leg giving way when walking, resulting in a fall. On October 2014 VA examination, the Veteran complained of left knee pain rated as 8/10 in severity. The diagnosis was moderate osteoarthritis of the left knee. The Veteran denied that flare-ups impact the function of his left knee and/or leg. On range of motion testing, flexion was to 135 degrees and extension was to 0 degrees. There was no objective evidence of painful motion. The examiner noted that range of motion was normal based on the Veteran's age. Repetitive testing did not result in reduced range of motion, additional limitation, or functional loss/impairment. Tenderness/pain was not noted. Muscle strength tests were normal. There was no anterior instability, posterior instability, medial-lateral instability, or patellar subluxation/dislocation. Contemporaneous x-rays showed no evidence of acute fracture, dislocation, suprapatellar joint effusion, or soft tissue abnormalities. Moderate medial compartment narrowing and osteophytes along the anterior portion of the patella were noted. Bony mineralization was within normal limits. The examiner explained that the Veteran's knee disability does not impact on his ability to work. Analysis The Veteran's left knee disability is currently rated 20 percent under Code 5257 (for other impairment of the knee consisting of moderate recurrent subluxation, lateral instability). Recent examinations (April 2012 and October 2014) have not shown instability of the knee. Rather, those examinations (along with a January 2012 MRI) have shown locking, pain, and effusion in the knee joint, a tear in the posterior horn of the medial meniscus, and osteoarthritis with pain at the end of motion on flexion. Consequently, given the manifestations shown the Board finds that the Veteran's left knee is more appropriately rated under Codes 5258 and 5003. The assignment of a particular Code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.952, 3.957; Butts, 5 Vet. App. 532; VAOPGCPREC 71-91 (Nov. 7, 1991). As explained below, the Board is assigning a combined 30 percent rating for the Veteran's left knee disability under codes 5258 and 5003, and such rating increases, and does not reduce, the rating assigned. Under Code 5258, a 20 percent maximum rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Based on findings in the January 2012 MRI and April 2012 examination, as well as Dr. J.D.'s July 2014 correspondence which reflects his belief that the Veteran has cartilage damage in the left knee, the Board finds that a 20 percent (maximum) rating under Code 5258 is warranted. In a precedent opinion, VA's General Counsel concluded that a veteran who has arthritis and instability in his knee may receive separate ratings under Codes 5003 and 5257. See VAOPGCPREC 23-97. The General Counsel has suggested in VAOPGCPREC 9-98 that the removal of the semilunar cartilage (Code 5259) may involve symptomatology caused by tears and displacements of the menisci that may be rated separately from symptoms caused by arthritis. Based on General Counsel's guidance, the Board finds that the Veteran's symptomatology of locking and effusion under Code 5258 due to a tear in the medical meniscus may also be rated separately from symptoms caused by arthritis, namely painful motion. As a general policy, 38 C.F.R. § 4.14 prohibits pyramiding (rating the same symptoms under different Codes). Here, the symptomology includes osteophytes shown by x-ray in April 2012 and October 2014, as well as the diagnosis of osteoarthritis in April 2012 and October 2014 examination reports. Range of motion testing on examination found flexion to no less than 135 degrees and extension full (to 0 degrees). Pain was noted at the end of flexion in April 2012, along with tenderness on palpation. Although a compensable rating is not warranted based on limitation of motion alone under Codes 5260 and 5261, a 10 percent rating is warranted under Code 5003 for arthritis with painful motion. The Board has considered whether application of other Codes would result in a higher rating, but finds that the symptomatology does not support such a finding. None of the evidence of record during the period for consideration suggests that the Veteran's left knee has been ankylosed, that there was removal of symptomatic semilunar cartilage, that there is nonunion or malunion of the tibia or fibula, or that there is genu recurvatum of the knee. Accordingly, Codes 5256, 5259, 5262, and 5263 do not apply. The Board has also considered whether referral of the claim for consideration of an extraschedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe the disability level and symptomatology. If the schedular rating criteria reasonably describe the disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether there is an exceptional disability picture that includes other related factors, such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization is found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. The Board finds that the first prong of the Thun analysis is not satisfied. The left knee disability is manifested by reports of pain, occasional swelling, "locking," and the knee giving way. Such manifestations and related impairment are contemplated by the regular schedular criteria. There is nothing exceptional or unusual about the Veteran's left knee disability. Thun, 22 Vet. App. at 115. He has not been hospitalized due to the left knee disability, nor does he take prescription medication for pain. The Board notes that in assigning a compensable rating, VA has in fact acknowledged that the Veteran's left knee disability may interfere with employment. Thus, referral for extraschedular consideration is not warranted. The matter of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record. The evidence reflects that the Veteran worked full-time in automobile sales for 18 years prior to his retirement in 2010. See October 2014 examination report; See also March 7, 2014, clinical record. VA examiners in April 2012 and October 2014 both opined that the Veteran's knee disability does not impact on his ability to work (presumably in primarily sedentary employment). ORDER A 30 percent combined rating is granted for the Veteran's left knee disability, subject to the regulations governing payment of monetary awards. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs