Citation Nr: 1623828 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 10-15 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease, status post arthroplasty of the right knee (hereinafter "right knee disability"). 2. Entitlement to an initial evaluation in excess of 10 percent for patellofemoral syndrome of the left knee (hereinafter "left knee disability"). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Sauter, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to December 1998 and from January 1999 to November 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified at a Travel Board hearing before the undersigned in January 2011. A transcript of the hearing is of record. In July 2014, the Board determined that ratings in excess of 10 percent for the right and left knee disabilities had not been met. The Veteran appealed the Board's July 2014 decision to the U.S. Court of Appeals for Veterans Claims ("Court"). In a July 2015 Order, the Court granted a Joint Motion for Partial Remand ("Joint Motion") which vacated and remanded the Board's July 2014 decision to the extent that it denied ratings in excess of 10 percent for the right and left knee disabilities. Pursuant to the Joint Motion, the Board remanded the claim in October 2015. The Board is satisfied that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The preponderance of the evidence does not show limitation of flexion of the right knee to 45 degrees or extension limited to 10 degrees; or recurrent subluxation or lateral instability; or dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joints. 2. The preponderance of the evidence does not show limitation of flexion of the left knee to 45 degrees or extension limited to 10 degrees; or recurrent subluxation or lateral instability; or dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joints. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for the Veteran's right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2015). 2. The criteria for a rating higher than 10 percent for the Veteran's left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Veteran's claims concerning the proper disability ratings to be assigned to his service-connected right and left knee disabilities arise from his disagreement with the initial disability ratings assigned to these conditions following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice as to these claims is needed under VCAA. The record also reflects that all relevant treatment and examination records are in the claims folder. Neither the Veteran nor his representative has identified any outstanding medical evidence. Moreover, the Board concludes that there has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). He underwent examinations in January 2009 and November 2012. He was afforded a VA examination in January 2016 pursuant to the October 2015 Board remand. The Board notes that the examinations are adequate as they were based on a thorough physical examination and fully addressed the rating criteria that are relevant to rating the Veteran's disabilities on appeal. Therefore, the Board finds that the remand directives were substantially completed and an additional remand is not required. See Dyment v. West, 13 Vet. App. 141 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). Left and Right Knee Disabilities The Veteran contends that his left and right knee disabilities warrant a higher rating evaluation than the currently assigned 10 percent. Specifically, he has reported pain, locking, effusion, and limitation of activities due to his knee disabilities. The Veteran's right and left knee disabilities have been rated under Diagnostic Codes 5010-5260. Traumatic arthritis is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 concerns limitation of leg flexion. A noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Additional diagnostic codes are potentially applicable to the claim. Diagnostic Code 5261 pertains to limitation of leg extension, and provides a noncompensable evaluation where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. Id. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, or a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Precedent opinions of the VA's General Counsel have held that dual ratings may be given for a knee disorder, with one rating for instability (Diagnostic Code 5257) and one rating for arthritis with limitation of motion (Diagnostic Codes 5003 and 5010). VAOPGCPREC 9-98 (63 Fed. Reg. 56,704 (1998)) and 23-97 (62 Fed. Reg. 63,604 (1997)). Another such opinion held that separate ratings under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension) may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (69 Fed. Reg. 59988 (2004)). VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. A December 2006 private magnetic resonance imaging (MRI) of the right knee revealed no evidence of joint effusion, while a January 2008 private MRI showed new joint effusion and degenerative changes of the patellofemoral region. A March 2008 private operative report shows that the Veteran underwent arthroscopy of the right knee, a partial lateral meniscotomy and chondroplasty of the medial femoral condyle and patella. On VA examination in January 2009, the Veteran complained of giving way, instability, pain, stiffness and weakness in the knees. He also reported decreased speed of joint motion and episodes of dislocation or subluxation several times a week. He denied any incoordination, locking episodes or effusion of the knees. He indicated that there was tenderness in the knees. He denied that the motion of the joints was affected or that there were any flare-ups of joint disease. He denied constitutional symptoms of arthritis or incapacitating episodes of arthritis. He was able to stand for up to one hour and denied any limitation on walking. He always used an orthotic insert. Physical examination revealed that his gait was normal. There was no evidence of abnormal weight bearing. Flexion of the left knee was from 0 to 140 degrees. Left knee extension was to 0 degrees. Flexion of the right knee was from 0 to 140 degrees. Right knee extension was to 0 degrees. There was no objective evidence of pain with active motion or after three repetitions of range of motion of either the left or right knee. There was no evidence of joint ankylosis. On VA examination in November 2012, the Veteran reported flare-ups of both knees which resulted in more limited motion. Flexion of the right knee was to 95 degrees with objective evidence of painful motion beginning at 95 degrees. Extension of the right knee was to 0 degrees with no objective evidence of painful motion. Left knee flexion was to 95 degrees with objective evidence of painful motion beginning at 95 degrees. Left knee extension was to 0 degrees with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions. After repetitive use testing, right knee flexion was to 95 degrees and extension was to 0 degrees. Post-repetitive use testing of the left knee revealed flexion to 95 degrees and extension to 0 degrees. There was no additional limitation in range of motion of the knees. There was functional loss of the knees which consisted of pain and less movement than normal. There was tenderness to palpation of the right knee. Muscle strength testing was normal for both knees. Joint stability tests were normal for both knees. Posterior drawer test was normal for both knees. There was no medial-lateral instability of either knee. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted that the Veteran's bilateral knee condition affected his employment in that the Veteran has to take frequent rest periods due to pain in the knees. Pursuant to the October 2015 Board remand, the Veteran was provided another VA examination in January 2016. He reported frequent pain and swelling, and a "locking" sensation that makes him feel as if the knee is going to give out. He uses a brace to stabilize his knees "on real bad days" and reported occasionally falling due to his knees giving out. Flexion of the right knee was to 115 degrees with no objective evidence of painful motion. Extension of the right knee was to 0 degrees with no objective evidence of painful motion. Left knee flexion was to 115 degrees with objective evidence of painful motion beginning at 115 degrees. Left knee extension was to 0 degrees with painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions. After repetitive use testing, there was no additional limitation in range of motion of the knees. There was no tenderness to palpation of either knee. Muscle strength testing was normal for both knees. Joint stability tests were normal for both knees. Posterior drawer test was normal for both knees. There was no medial-lateral instability of either knee. There was no evidence or history of recurrent patellar subluxation/dislocation. There was no ankylosis. The examiner noted that the Veteran has a semilunar cartilage condition manifested by frequent episodes of joint pain. X-ray findings revealed normal joint spaces without joint effusion or focal soft tissue swelling. The examiner noted that the Veteran's bilateral knee condition affected his employment in that he has difficulty prolonged walking, standing, running, or kneeling/bending. He is able to tolerate a sedentary position with accommodations allowing periods to change position. The Board finds that a rating greater than 10 percent for the service-connected right and left knee disabilities is not warranted under either Diagnostic Code 5260 or Diagnostic Code 5261. Flexion of both knees was to 140 degrees with no objective evidence of painful motion on VA examination in January 2009. On VA examination in November 2012, flexion of the right knee was to 95 degrees with pain beginning at 95 degrees and extension was to 0 degrees. Flexion of the left knee was to 95 degrees with pain beginning at 95 degrees and extension was to 0 degrees. In January 2016, flexion of the right knee was to 115 degrees without pain and extension was to 0 degrees. Flexion of the left knee was to 115 degrees with pain beginning at 115 degrees and extension was to 0 degrees. A 20 percent rating under these codes requires limitation of flexion of the knee to 30 degrees or extension limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. As there has never been any evidence of ankylosis, cartilage removal, or tibia and fibula impairment, consideration of Diagnostic Codes 5256 and 5259 is not appropriate. As for instability, although the Veteran contends that he experiences giving way of the knees, the VA examination reports do not reveal any objective evidence of instability of either knee. Thus, the Board finds the objective findings on examination of stable knee joints to be more probative than the Veteran's lay assertions of instability. He is competent to describe the sensation of feeling unsteady due to his knees, but not to provide a diagnosis of subluxation, which can only be made with clinical testing performed by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (2007) (a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, a separate rating based on recurrent subluxation or lateral instability of the right and left knees under Diagnostic Code 5257 is not warranted. Although the Veteran has reported that he frequently experiences a "popping" or "locking" sensation, the January 2016 VA examiner found no evidence of dislocated semilunar cartilage that would cause "popping" and "locking" of the knee. The Veteran is competent to describe a sensation; however, to the extent that the Veteran implies that he has a dislocated semilunar cartilage by claiming that his knee "pops" and "locks," he has not established his competence to enter such a diagnosis. Jandreau, 492 F.3d 1372. Further, although there have been objective findings of effusion, Diagnostic Code 5258 requires a clinical finding of dislocated semilunar cartilage "with frequent episodes of 'locking' pain, and effusion into the joint." 38 C.F.R. § 4.71a, Diagnostic Code 5258 (emphasis added). As noted, no evidence of dislocated semilunar cartilage was found upon physical examination or x-ray imaging. Effusion and pain without dislocated semilunar cartilage does not meet the criteria for a higher evaluation under Diagnostic Code 5258. The medical evidence does not reflect that the Veteran's subjective reports of knee pain and weakness caused functional loss sufficient to warrant a disability rating in excess of 10 percent in either knee. See 38 C.F.R. § 4.40; DeLuca, supra. The Veteran's subjective complaints of pain and weakness are adequately addressed by the 10 percent ratings presently assigned. In summary, the Board finds that initial evaluations in excess of 10 percent are not warranted for either knee at any time during the course of the appeal. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran has not specifically argued, and the record does not otherwise reflect, that his disabilities render him totally unemployable. At the January 2016 VA examination, he reported that he is currently employed in security. Accordingly, a claim for TDIU has not been raised. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disabilities with the established criteria found in the rating schedule for those disabilities. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's disabilities is contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating in this case is adequate. The Veteran's complaints of pain, limitation of motion, and activity limitation are contemplated in the criteria for evaluating his disability. The applicable diagnostic criteria consider such symptoms, and as discussed above, the Board has found that the weight of the evidence does not demonstrate that the Veteran's knee disabilities meet or more closely approximate the next higher rating under any of the applicable diagnostic codes for the period on appeal. Additionally, there is no indication that the collective impact or combined effect of multiple service-connected disabilities presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The rating criteria practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disabilities. See 38 C.F.R. § 4.71a (2015). Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee disability is denied. Entitlement to an initial disability rating in excess of 10 percent for left knee disability is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs