Citation Nr: 1634772 Decision Date: 09/06/16 Archive Date: 09/09/16 DOCKET NO. 13-09 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a disability rating in excess of 10 percent for status-post right knee meniscectomy with degenerative arthritis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T.Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from May 1955 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 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 1. Throughout the period on appeal, the Veteran's status-post right knee meniscectomy with degenerative arthritis has been manifested by symptoms no greater than objective findings of pain, forward flexion limited to 125 degrees, extension limited to 10 degrees, not additionally limited following repetitive use, but without swelling, locking pain or effusion into the joint. 2. Resolving reasonable doubt in favor of the Veteran, throughout the period on appeal, his status-post right knee meniscectomy with degenerative arthritis has been manifested by reports of mild instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for status-post right knee meniscectomy with degenerative arthritis were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5259 (2015). 2. Affording the Veteran the benefit of the doubt, the criteria for a separate disability rating of 10 percent, and no greater, for right knee instability were approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§!3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5257, 5258 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable laws and regulations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. The veteran's entire history is reviewed when making a disability determination. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2009). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.40. It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. Id. With regard to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The United States Court of Appeals for Veterans Claims (Court) has held that when evaluating loss in range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain). In DeLuca, the Court explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40 ) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. The fact that the revised criteria include symptoms such as pain, stiffness, aching, etc., if present, means that evaluations based on pain alone are not appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51,455 (Aug. 27, 2003). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2015); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's status-post right knee meniscectomy with degenerative arthritis has been evaluated under DC 5258. Under this diagnostic code, a 20 percent rating is assigned for dislocations of the semilunar cartilage, with frequent episodes of locking, effusion, and pain. 38 C.F.R. § 4.71a, DC 5258. This is the only rating available under this diagnostic code. Pursuant to DC 5003, degenerative arthritis (hypertrophic or osteoarthritis), established by x-ray findings, will be evaluated on the basis of limitation of motion under the appropriate diagnostic code 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 DC 5003. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. Id. Limitation of motion of the knee is evaluated under 38 C.F.R. § 4.71, DCs 5260 and 5261. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a maximum 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II (2015). Analysis The Veteran contends that his service-connected right knee disorder has increased in severity. Private treatment reports, dated in July 2009, show that he was examined after reporting that he had made a "pivot turn" on his right knee while wearing a knee brace and heard a crunching sound. He said that, although the knee had been bothering him for about 3 weeks before that, after the incident, it became swollen and so painful that he could not bear weight on it. On examination, the knee was without obvious swelling or deformities, not red or hot. He had a well-healed scar from the distal thigh to below the patella. He was point tender over the joint line space, both medially and laterally. He was not able to fully extend his leg because of pain in the knee. The examiner said there was a point of crepitus, but he did not make the Veteran go through a serious of range of motion exercises. On x-ray, there were osteoarthritic changes, severe in the patellofemoral joint, mild to moderate in the medial compartment, extensive cartilaginous calcifications and a possible ossified intraarticular foreign body seen anteriorly over the tibial plateau. In August 2009, the Veteran was seen at the VA Medical Center (VAMC) by an orthopedic surgeon, where he reported that he had been experiencing right knee pain since June 2009, when he experienced significant diffuse pain and swelling while walking. He reported that he had been given corticosteroid injections by another provider, who had also recommended arthroscopic surgery. He said that his pain was no longer constant and he was now experiencing mild swelling off and on. He said ice and Nsaids (nonsteroidal anti-inflammatory drugs) helped as needed. He also reported cycling and swimming weekly. Upon examination, range of motion in forward flexion was to 125 degrees and extension was to zero degrees, both on passive and active motion. Strength and stability tests were within normal limits. The clinician ordered a new right knee brace. In October 2009, the Veteran was afforded a VA examination. The examiner noted that he had reviewed the Veteran's private right knee treatment reports from July 2009, as well as his recent VAMC orthopedic treatment reports. The Veteran said that the new knee brace helped control his problems with instability and giving way, as he had been experiencing giving away about twice per day before the brace. He also said that he had fallen once in June 2009. He said he experienced right knee pain if he walked more than a block, stood for 20 minutes or stood putting weight on his right knee. He reported chronic daily pain made worse by position and activity, and said pain was his primary problem. He denied incoordination, dislocation, weakness, fatigue, lack of endurance or swelling. Upon examination, forward flexion was zero to 125 degrees with pain in active motion, but to 130 degrees on passive motion, but with more pain; extension was normal at zero. He said that using both a cane and knee brace helped considerably in his daily functioning. Testing for stability, he had pain, but no identified looseness or instability. His right knee range of motion was limited by pain, not by fatigue, weakness, lack of endurance, incoordination or effort. There was no additional limitation of motion on repetitions, no spasm, focal weakness or localizable tenderness, no atrophy, deformity or malalignment, no incoordination, instability or subluxation, and no ankylosis, edema or effusion. In July 2015, the Veteran was afforded a second VA examination. He said he only experienced right knee flare-ups only when over-using the knee. Range of motion in forward flexion was to 130 degrees, and extension was to 10 degrees. He was able to perform repetitions without any additional loss of range of motion. The examiner noted that the loss of range of motion itself did not contribute to functional loss. There was no evidence of pain with weight-bearing, localized tenderness or pain on palpation of the joint or associated soft tissue, no muscle atrophy and no ankylosis. The examiner found that the Veteran's functional ability over time was not limited by pain, weakness, fatigability or incoordination. Muscle strength testing was normal for both forward flexion and extension. Despite the Veteran's reports of occasional instability, all joint stability tests were normal. The examiner opined that any occupational tasks requiring extensive lifting, bending kneeling or walking would be unsafe and problematic. Although the examiner noted the presence of a 29 centimeter by .5 centimeter scar from the Veteran's right meniscal surgery during service, it was not painful or unstable and did not have a total area of at least 39 square centimeters. Applying the pertinent legal criteria to the facts of this case, the Board finds that, for the period on appeal, the most probative evidence is against the Veteran's claim of entitlement to a disability rating in excess of 10 percent for status-post right knee meniscectomy with degenerative arthritis under DC 5259. As discussed above, a 10 percent disability rating is the highest rating available under this diagnostic code. A higher disability rating is also not warranted under DC 5260 because, although he demonstrated right knee forward flexion limited to 125 degrees during the 2009 VA examination, that limited range of motion is not compensable under this diagnosis code. Further, although the second VA examination showed that his right knee extension was limited to 10 degrees, the Board finds that separate ratings under both DC 5259 (symptomatic removal of the semilunar cartilage) and 5261 (limitation of extension) are not warranted in the present case, as to do so would constitute pyramiding. Under DC 5259, a maximum 10 percent rating is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a, DC 5259. That is, there are only two requirements for a compensable rating under DC 5259. First, the semilunar cartilage or meniscus must have been removed. Second, it must be symptomatic. Looking to the plain meaning of the terms used in the rating criteria, "symptomatic" means indicative, relating to or constituting the aggregate of symptoms of disease. STEDMAN'S MEDICAL DICTIONARY, 1743 (27th ed., 2000). A symptom is any morbid phenomenon or departure from the normal in a structure, function, or sensation, experienced by a patient and indicative of disease. Id. at 1742. Thus, the second DC 5259 requirement of being "symptomatic" is broad enough to encompass symptoms including pain, limitation of motion, stiffness and instability. Here, the Veteran's status-post right knee meniscectomy with degenerative arthritis has been manifested by limitation of extension to 10 degrees, which is contemplated by the rating criteria under both DC 5259, as a symptomatic residual of the semilunar cartilage removal, and DC 5261, as limitation of extension. As the limitation of extension manifested by the knee disability is contemplated by the criteria for both diagnostic codes, the Board finds that assigning separate ratings under both DC 5259 and DC 5261 would constitute pyramiding, as it would compensate the Veteran twice for the same symptomatology (here, limitation of extension). See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also 38 C.F.R. §4.14 (2015). The Board has also considered whether other diagnostic codes are applicable to either of the Veteran's bilateral knee disorders at any time during the appeal. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). The remaining diagnostic codes relating to knee disabilities include 5256 (for ankylosis) and 5259 (for cartilage, semilunar, removal or, symptomatic) and 5263 (for genu recurvatum). However, because there were no objective findings of ankylosis or genu recurvatum, neither of these diagnostic codes is applicable. The Board concludes, however, that, throughout the entirety of the period on appeal, the criteria for a separate disability rating for right knee instability under DC 5257 were approximated. Under DC 5257, recurrent, subluxation or lateral instability of the knee, slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. 38 C.F.R. § 4.71a, DC 5257. Although none of the clinicians who examined the Veteran's right knee during the course of the appeal found any evidence of instability, the Court has held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Here, the private treatment records beginning in July 2009 show that the Veteran reported feeling as though his knee would give way twice a day, as well as reporting a fall due to instability in June 2009. The Board finds that knee instability is a symptom that the Veteran, as a lay person, is competent to describe; moreover, there has been no evidence presented to cast doubt on his credibility. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, as his reports of right knee instability are entitled to some probative weigh and, affording him the benefit of the doubt, a separate 10 percent disability rating for mild right knee instability is warranted. A greater disability rating for right knee instability is not warranted, however, as there was never any probative evidence of moderate instability, including no such description from the Veteran. Extraschedular disability ratings and other considerations In evaluating the Veteran's claim, the Board has also considered whether referral for consideration of an "extraschedular evaluation" is warranted for the disability on appeal, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an extraschedular evaluation, commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities, will be made. 38 C.F.R. § 3.321(b)(1). The lay and medical evidence of record fails to show unique or unusual symptomatology regarding the Veteran's service-connected status-post right knee meniscectomy with degenerative arthritis that would render the schedular criteria inadequate. Thus, the application of the Rating Schedule is not rendered impractical. Moreover, the Veteran has not argued that his symptoms are not contemplated by the rating criteria; he has merely disagreed with the assigned disability rating for his level of impairment. Moreover, although the clinician who performed the July 2015 VA examination opined that any occupational tasks requiring extensive lifting, bending kneeling or walking would be unsafe and problematic, he did not opine that the Veteran could not perform sedentary activities. Accordingly, referral for consideration of an extraschedular evaluation is not warranted. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. VA satisfied the notification requirements of the VCAA by means of a letter dated in October 2009, which advised the Veteran of the types of evidence needed in order to substantiate his claim, the division of responsibility between himself and VA for obtaining the required evidence, and asked him to provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The claim was subsequently readjudicated in a March 2013 Statement of the Case and a December 2015 Supplemental Statement of the Case, which provided him with the disability ratings under which his knee disorder has been evaluated. VA's duty to assist has also been satisfied. The claims file contains the Veteran's private and VA treatment records (which contain no probative evidence to support a disability rating greater than that granted by means of this decision), the VA examination reports discussed above, and the Veteran's statements in support of his claim. The VA examinations are adequate upon which to base a decision in this matter. The reports show that the examiners reviewed the Veteran's treatment records, elicited a history of symptomatology and treatment from the Veteran, performed comprehensive examinations, along with reviews of available diagnostic test results, and provided the diagnostic criteria necessary to evaluate the severity of the disability. Accordingly, no further notice or assistance to the Veteran is required to fulfill VA's duties to notify and assist him in the development of his claims. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). ORDER Entitlement to a disability rating in excess of 10 percent for status-post right knee meniscectomy with degenerative arthritis is denied. A separate disability rating of 10 percent, and no greater, for right knee instability is granted, subject to the criteria applicable to the payment of monetary benefits ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs